In Parashas Behar we read the Pasuk: “For they are My servants, whom I took out of the land of Egypt; they shall not be sold as slaves” (Vayikra 25:42).
This Pasuk teaches us the value of freedom. We are servants of Hashem, and of Hashem alone. Even permanent slavery (beyond the first six years) ultimately comes to an end at the Yovel year when all Jewish slaves and their families are released (Vayikra 25:40). The special relationship between Hashem and the Jewish People does not allow permanent slavery.
Even outside the framework of slavery, the Torah sages were aware of the fact that a working regimen of a regular day laborer can come close to slavery. Thus, they derived (Bava Metzia 77a) from the same verse that a worker reserves the right to quit his job whenever he wishes to do so. This basic halachah is ruled by the Shulchan Aruch (Choshen Mishpat 333:3).
The question we wish to address in the present article is the right to strike. Striking is a work stoppage, a mass refusal of workers to work to pressure the employer into improving workers’ pay or conditions. The legal rights of workers to strike have changed over the years, and in most countries today workers have a limited right to strike.
What is the Torah outlook concerning strike action? Beyond the right to quit, do workers have the right to take organized strike action? Do we find any precedents for this matter in halachic literature? Are there distinctions concerning different professions? These questions and others are discussed below.
Labor Unions
Strikes are generally initiated by trade or labor unions. A trade union is an organization of workers who have united together to achieve common goals, such as protecting the integrity of their trade, achieving higher pay and benefits, increasing the number of employees an employer assigns to complete the work, and so on. Through its leadership, the trade union bargains with the employer on behalf of its members and negotiates labor contracts with employers.
Though not in the context of bargaining with employers, the Talmudic Sages were familiar with the idea of a trade union or workers’ guild. The Gemara (Bava Basra 8b-9a) grants authority to workers’ guilds to enact as they see fit rules that are binding on workers. This includes wage regulation, working conditions and so on. Such guilds have the authority to enforce the regulations as well.
The Gemara mentions a group of tanners who, to ensure the profitability of their trade, divided the available working days among themselves, thus limiting supply and enabling prices to be driven up. To enforce this, it was decided that a tanner working on someone else’s day would have his hides torn up. This decision would have been valid if not for the presence of Rava, a noted Torah authority involved in economic communal matters. In the presence of such a person, only he has the final say regarding such enactments.
Accordingly, the Shulchan Aruch (CM 231:28) rules that groups of workers may enact trade regulations, together with appropriate penalties to enforce them, on condition that there is no Torah leader who is appointed over communal matters, or that the relevant Torah leader agrees with the regulations.
If all, or at least most, workers support the action of a trade union, their action is in principle binding. Although there are great Torah personages in our day and age, their involvement and supervision of such business related matters is limited, and thus does not interfere with the independent actions of trade unions.
Based on these principles Rav Moshe Feinstein (Shut Iggros Moshe, Choshen Mishpat 1:59) validates the power of unions to regulate as they see fit. He suggests further that where workers not affiliated with the union are a minority, the action of a union, for instance a prohibition on going to work in case of a strike, could be binding even for workers who are not members.
The Right to Strike
However, a strike is not mentioned by Chazal, and it requires an independent analysis.
With regard to a private strike by a worker or workers unaffiliated with a union, the concept of a strike seems foreign to halachah.
As noted in the introduction to this article, workers in general have a basic right to quit their jobs at will. However, it is not clear if this basic right applies to workers under contract. According to the Ritva (Bava Metzia 76), where a legal kinyan was made between the parties, workers do not retain the right to leave their jobs at will.
Assuming that the signing of a contract is a legal kinyan (by force of the common custom), it follows that there is no right of workers to strike, just as there is no right to leave the job.
A worker under contract must continue working according to the terms and conditions of the contract, and he cannot use strike action (or threat thereof) to achieve better conditions.
Quitting and Striking
The Shach (Choshen Mishpat 333:14) disputes the ruling of the Ritva, citing the opinion of the Rivash that a worker always retains the right to leave his job, no matter what kinyan was made. The Mabit (1:132) however sides with the Ritva, and writes that had the Rivash seen the Ritva, he would surely not have disputed his ruling.
Yet, even if we assume the ruling of the Shach, which permits workers to quit at will, this applies only to a worker who wishes to leave his job permanently. A worker, whether under contract or not, has no right to take off a number of days of work and simultaneously enjoy a guarantee that he keeps his job.
Beyond this, the Gemara (as ruled by the Shulchan Aruch, Choshen Mishpat 333:5) teaches that if a worker’s resignation will cause an employer financial loss, the employer may seek restitution from the workers.
Thus, there are three potential problems relating to a personal strike: 1. The opinion of the Ritva whereby somebody under contract may not even quit his job; 2. The distinction between quitting and taking time off work while expecting to keep the job; 3. The right of an employer to recover losses caused by workers from the workers. A private strike will not generally be effective: If financial loss to the employer is involved, the employer can simply fire the worker and hire another in his stead, even withholding salary he owes to recover losses if required.
Union Strikes
The halachic appraisal changes somewhat with regard to group action. This is due to the force of the custom. The Mishnah and Gemara (Bava Metzia 86a) clarify that all elements of a working agreement are assumed to be in accordance with the common custom (see also Rivash 475; Shulchan Aruch, Choshen Mishpat 332:1).
An employer whose workers are members of a trade union where striking is permitted under given circumstances, knows that his workers reserve the right to strike. It thus stands to reason that his very agreement to hire workers in spite of their membership in a union, constitutes an acceptance of this customary practice. The workers are therefore entitled to take part in collective strike action.
Authorities thus rule that strike action is essentially permitted, the most prominent of them being Rav Moshe Feinstein (in the above-mentioned teshuvah). This opinion is likewise echoed by Rav Ovadya Yosef (Shut Yecheveh Daas 4:48), where he gives halachic support to strike action based on the principle of “the custom defers the halachah” (Maseches Sofrim 14). This means in this case that the custom creates a contractual agreement between the parties giving workers the right to strike.
Just as trade unions can enforce rules among workers by means of penalties (as noted above from Bava Basra 8b; see Rivash 396, Rashba 4:185, Shulchan Aruch, Choshen Mishpat 231:27), which rely on the force of custom, so the power of custom gives them the right to negotiate work conditions by means of a strike.
Moreover, based on the right of trade unions and guilds to enforce their enactments on members, it appears that even preventing workers from going to work will be permitted, for a strike that the majority agreed on. This is the opinion of Rabbi Eliezer Waldenberg (Shut Tzitz Eliezer Vol 2, no. 23).
However, the Chazon Ish (Bava Kama 23) writes: “If the workers come back, and are dissatisfied with the pay that was agreed… they do not have the right to prevent others from coming to work… and if the hand of Beis Din is strong, Beis Din must prevent such wrongdoing insofar as is possible” (see also Shut Minchas Shlomo Vol. 1, no. 87).
Striking for Different Professions
Not all professions are the same with regard to striking rights. A prominent example is physicians. In 1983 Israeli physicians, looking to improve their poor working conditions, went on a strike which led to a series of rabbinic pronouncements on the impropriety and illegality of the strikes. At its height, nearly all physicians refused to report for duty at government hospitals and clinics. Later, physicians even went on a hunger strike.
On the day that the main strike began (May 22, 1983), a rabbinic ruling by Rabbis Yitzchok Yaakov Weiss and Shlomo Zalman Auerbach was widely publicized throughout Shaare Zedek hospital and elsewhere in Israel. In a letter addressed “to the hospital administration and its physicians,” the rabbis wrote:
“We have heard that there are doctors who have abandoned their work in the hospital and have forsaken their patients. The situation is such that the number of physicians available in the hospital is even less than the number usually present on the Holy Sabbath. Assuming that the latter is the minimum needed for the saving of life which is permissible on the Sabbath, the halachah is clearly spelled out in the Shulchan Aruch (Yoreh Deah 336:1): “a physician who withholds himself from healing is guilty of shedding blood.
“Therefore, the obligation is upon you to assure the presence of an adequate medical staff in the hospital no less than on a regular Sabbath. All the physicians are obligated to fulfill the aforementioned. We ask that this ruling of ours be transmitted to all the physicians in the hospital.”
This rabbinic ruling was not issued in the early stages of the strike but only with regard to stage three, which involved possible immediate danger to patients’ lives. About a month later, the hunger strike began. Physical weakness of the physicians, and thus their compromised ability to care properly for patients, became the next Jewish legal question.
When physicians went on a hunger strike, the same rabbis issued another ruling, stating that if the hunger strike will weaken doctors so that they will be unable to heal patients, it is forbidden for them to participate. Thus, even if we assume a general legal right to strike, this must be evaluated carefully in each circumstance and situation, and there are exceptions to the general permissive rule.
Teachers on Strike
Another profession for which striking raises a special concern is the teaching profession, and in particular Torah teachers. In the above-mentioned teshuvah (see also Choshen Mishpat 2:59) Rav Moshe addresses the question of whether it is permitted for Torah teachers to strike in a bid for better working conditions.
The teaching of Torah is not considered a profession, but an act of religious observance. There is a concrete obligation to teach Torah without pay (Rambam, Talmud Torah 1:9). Although teachers of Torah today are generally paid, this payment is considered a replacement for what the teacher could earn from alternative employment, rather than remuneration for his work. If so, striking for better pay will raise a special concern.
In addition, a teachers’ strike, in particular Torah teachers, raises a concrete problem of causing bittul zeman (waste of time). The Rema (Choshen Mishpat 333:5) and Shach (26) explain that when Rav (in the Gemara) refers to the ability of a worker to quit in the middle of the day if no loss will result to the employer, this will generally exclude teaching, since “every moment a child is not learning causes irreparable damage.” Though applying primarily to Torah studies (Maharam 4:387), some later authorities apply the concept even to secular studies. As Rav Aharon Kotler explains, wasted time brings about a neglect of education and of nurturing students (Mishnas Rabbi Aharon, Chapter 71).
For these reasons, Rav Moshe Feinstein treats teachers’ strike with greater severity than those of regular workers. However, he concludes that there is room for strike action even for Torah teachers where the employer abuses their position by providing insufficient pay. If there is no other way to achieve a pay raise, and it is likely that after a short time the employer will capitulate, then the strike is permitted.
This, he states, falls under the rubric of es la’asos laHashem Hefeiru Torasecha. Rav Ovadiah Yosef, however, after citing the Iggros Moshe, claims that nowadays the reasoning is not applicable, so that even Rav Moshe will agree that it is forbidden and that Torah teachers may not ever go on strike.
Employer Obligation
In conclusion, we have seen that when it comes to union strikes, it is generally permitted to strike when this is accepted practice according to the law and custom of the land. Some even permit preventing other workers (strike breakers) to go to work based on the custom and on the rights of a union to enforce internal principles on its members. However, these principles cannot be applied to all situations, and for certain professions (such as medicine and teaching) the concept of striking takes on special severity.
It is important to note – as mentioned above – that custom obligates an employer in all matters of employment (Shulchan Aruch 332:1). An employer who fails to meet the accepted standards can be coerced into complying with them by any available means, including strikes of all sorts. This idea is presented at length by the Tzitz Eliezer (Vol 2, no. 23).
