Strikes

  • Rav Chaim Navon

YHE-HALAKHA: TOPICS IN HALAKHA

 

 

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Shiur #06: STRIKES

Rav Chaim Navon

 

 

I. A WORKER'S RIGHT TO WITHDRAW FROM THE CONTRACT

 

            We shall begin by examining the sources dealing with a worker's right to withdraw from the employment even in the middle of the day, as they are found in the Gemara. Our point of departure is that a worker has the right to withdraw from his employment even in the middle of his work:

 

A worker may withdraw from his contract even in the middle of the day… for it is written: "For the people of Israel are servants to Me" (Vayikra 25:55) – they are servants to Me, and not servants to other servants. (Bava Metzia 10a)

 

The question still remains, however, whether a worker who withdraws from his contract is still entitled to wages for the work that he had already completed. Elsewhere in Bava Metzia, the Gemara distinguishes between several different possibilities in this context:

 

As it has been taught: If someone hired artisans and they misled the employer, or the employer misled them, they have nothing but resentment against each other.

In what case are these things said? When they did not go. But if ass drivers went and did not find produce, or if workers went and found the field while it was waterlogged, he gives them their wages in full. But someone who comes loaded is not like someone who comes empty-handed, and someone who works is not like someone who sits and is idle.[1]

In what case are these things said? When they have not begun work. But if they have begun work, we assess for them what they have done. How so? If they undertook to reap standing corn for two selas[2] and they reaped half of it and left half of it, to weave a garment and they wove half of it and left half of it, we assess for them what they did. If what they did was worth six dinars,[3] he gives them a sela, or they may finish their work and receive two selas. And if what they did was worth a sela, he gives them a sela.

Rabbi Dosa says: We assess for them what remains to be done.[4] If it was worth six dinars, he gives them a shekel, or they may finish their work and receive two selas. And if it was worth a sela, he gives them a sela.

In what case are these things said? In the case of something that will not an irretrievable loss ("davar ha-avud"). But in the case of an irretrievable loss, he may hire other workers at their expense or mislead them.[5] (Bava Metzia 76b)

  

            The passage later reaches the conclusion that in a case of "davar ha-avud" – that is, in a case where the worker's quitting in the middle of the job will cause his employer an irretrievable loss, and the employer cannot wait patiently until he finds other workers – even the Sages agree that the worker is not entitled to his wages prorated in accordance with the work that he did (unless he was forced to leave his work owing to circumstances beyond his control), but rather the employer may hire other workers at a higher wage at the expense of the worker who quit. So too the Shulchan Arukh rules:

 

When does this apply? When the employer will not suffer an irretrievable loss. But when the employer will suffer an irretrievable loss, e.g., when the worker was hired to remove flax from the steeping pond, or to bring flutists to perform at a funeral or at a wedding, or the like, whether he is a timeworker or a pieceworker, he cannot withdraw from the contract, unless he was unavoidably prevented from completing the work, e.g., where he was ill or he heard that a relative had died. But where he was not unavoidably prevented from completing the work, and he withdrew from the contract – if the employer could have hired other workers when he hired this one,[6] but now he cannot find them, he may hire other workers at their expense, or he may mislead them. (Shulchan Arukh, Choshen Mishpat 333:5)

 

            Rav Uziel noted that "according to working conditions of our day, it is clear to me that any delay in agricultural, industrial or construction work falls into the category of "davar ha-avud" (Mishpetei Uziel, IV, Choshen Mishpat, no. 42).

 

            It should further be noted that according to what we have thus far, it would seem that in a case where the employer will not suffer an irretrievable loss, a worker can stop working even in the middle of the day. He can never be compelled to work against his will; at most he can be forced to compensate his employer for the losses that he caused him. The Shakh, however, writes that when the worker's employment was ratified with a kinyan, he cannot quit:[7]

 

While it is true that if he begun work, he can withdraw from the contract, and be at a disadvantage… here, since he performed meshikha or a kinyan sudar, no amount of money helps, but rather he must perform the work, if his employer so desires. (Shakh, Choshen Mishpat 333, no. 4)

 

            And the Rema writes in his Darkhei Moshe, that any work agreement reached with the consent of the community is regarded as having been ratified with a kinyan, so that neither side can withdraw from the contract:

 

They also write there (in Hagahot Mordekhai) concerning a community who hired a teacher and wanted to withdraw from the contract before he began to work, and he rules that anything done by the community does not require a kinyan, and they cannot withdraw from the contract. (Darkhei Moshe, Choshen Mishpat 333:5)

 

            Moreover, the Rema rules that we do not accept a worker's argument that he wishes to withdraw from a contract merely because in the meantime wages have risen, and he thinks that he can find more profitable work:

 

This only applies where he withdrew from the contract for no specific reason. But if he withdrew because of rising wages, we do not listen to him. (Rema, Choshen Mishpat 333:4)

 

            The entire allowance granted to a worker to withdraw from a contract is based on the principle of "'for the people of Israel are servants to Me' (Vayikra 25:55) - and not servants to other servants" (Kiddushin 22b). That is to say, this allowance comes to prevent the situation that a worker would be regarded as a servant. When a worker wishes to release himself from his contract for commercial reasons, this rationale does not apply. It is simply commercial exploitation on the part of the worker, for surely he would agree to continue working were he offered a higher wage (see Bach).[8]

 

            And furthermore, the Tosefta records a reservation that limits the worker's right to withdraw from his contract, if the community depends upon him:

 

Someone who is the community bath attendant, the community barber, the community baker, or the community moneychanger, and there is nobody else but him, and a festival was approaching, and he wishes to go home, they can prevent him from doing so, until he sets someone in his place. But if he had stipulated with them before a court or if they acted improperly toward him ("she-ibru alav"), he is permitted [to go home]. (Tosefta, Bava Metzia 11:13)

 

            R. David Pardo in his commentary to the Tosefta, Chasdei David, explains this law as follows:

 

I found this neither in the Gemara nor in the Posekim, but nevertheless it is clear that even though in general we maintain that a worker can withdraw from his contract, here, because of communal need, we compel him not to go home even to celebrate a festival, unless he sets another person in his place…. But if from the outset he had explicitly stipulated that [he was accepting the position] on condition that he be permitted to go to his town for the festival, he is permitted… And "she-ibru alav" means that they acted improperly toward him, e.g., they failed to pay his wages, or else they paid him less than he deserved. (Chasdei David, ad loc.)

 

            According to the Chasdei David's explanation, a worker can withdraw from his contract, even if the community needs his services, if he had been treated unfairly. This, however, is an exceedingly delicate and problematic factor.

 

            In any event, what we have seen thus far applies to a worker who withdraws from his employment during the period that he is under contract to work. But once the contract expires, there is nothing to prevent the worker from refusing to renew it unless he is offered better conditions. And furthermore, when workers are not negotiating terms of employment in general, but rather they demand that their employer pay them an old debt, and he refuses, there may be room to allow them to strike, based on the principle that "a person may take the law into his own hands," in accordance with the parameters of that principle.[9]

 

            In any event, the Tzitz Eliezer argues that the entire discussion brought above is irrelevant to the issue regarding the right to strike in its modern sense:

 

This particular law regarding the use of force by way of a strike as is practiced in our day, to stop working and also bar other workers from working, and afterwards even to demand payment of wages for the strike days, has no explicit source in the Gemara or in the words of the Posekim. There is only the well-known law that a worker can withdraw from his contract even during the middle of the day… I will not discuss this here, because in my opinion, it is irrelevant to the matter under discussion which is entirely different. For the worker does not [wish to] withdraw from the contract and stop working for his employer. But rather he vigorously stands up for his rights which have already become the customary practice in the land, and he doesn't allow the employer to hire others in his place. Rather he compels him to agree to fulfill his demands, and then he will return to his work. (Tzitz Eliezer, II, no. 23)[10]

 

II. ENACTMENTS PASSED BY THE MEMBERS OF A PARTICULAR TRADE

 

            It may be that we have to take into account additional factors, besides the strict law as found in the Shulchan Arukh. It is possible that a trade union has the authority to make enactments that go beyond what is explicitly stated in the halakhic codes. The Shulchan Arukh's issues the following ruling regarding the authority of members of a particular trade to enact ordinances to govern their own conduct:

 

Members of a trade are permitted to enact ordinances regarding their trade, e.g., to agree among themselves that the one will not work on the day assigned to his fellow, and the like, and that whoever violates the stipulation will receive such-and such a punishment. When does this apply? In a place where there is no important sage appointed over the community; but if there is [such a sage], their stipulation has no force, and they cannot punish and cause a loss to one who did not observe the stipulation, unless they did it with the consent of the sage. (Shulchan Arukh, Choshen Mishpat 231:28)

 

            It is, therefore, possible that a trade union has the authority to enact ordinances that are binding upon all members of that profession and to call a strike; and if the majority of the members agree, they can force the minority not to break the strike. An enactments passed by a trade union may go beyond the law governing a single worker who wishes to withdraw from his contract, and it may allow its members to call a strike.[11] According to Halakha, however, in order for an ordinance passed by the members of a particular trade to have legal validity, it must be ratified by the leading authorities of the city. Rav Sh.Z. Auerbach has an interesting comment on this issue:

  

It may be proposed that in those places where the rabbis and Torah scholars of the city do not involve themselves in labor issues and wage matters, it is as if there is no sage in the city[12]…. This being the case, it is possible that the enactments of trade unions are valid, and that by law they may strike and bar others from encroaching on their territory…

In any event it seems that if the most important authority in the city agrees with the demands of the teachers, they are permitted to comply with the enactments of the members of their profession in that city, who forbade others to encroach upon their territory, and force thereby their employers….

And if he [= the rabbi of the city] sees that indeed they are being unfairly treated regarding their wages, the local custom should be followed, and there is no concern whatsoever regarding the cancellation of the children's Torah study, and the responsibility falls primarily on the general public and the leaders of the community, who refuse to adequately compensate the teachers, and sometimes cancellation of Torah study leads to its being strengthened. (Rav Sh.Z. Auerbach, Techumin V, pp. 291-292)

 

            To this we should add what Rav Katriel Tachorsh has written, that in our time, with the establishment of labor laws in the State of Israel, the Knesset and those in charge of labor relations in the executive branch of the government (and perhaps today also the labor courts?) are regarded as "an important person," and it is they who give their seal of approval to the decisions of trade unions.[13]

 

III. COMMUNAL ENACTMENTS

 

            Beyond the authority granted to members of a particular trade, it may be possible to make use of the authority granted to the members of a community to enact enactments. The Gemara writes as follows:

 

The townspeople are at liberty to fix weights and measures, prices, and wages, and to inflict punishments for the infringement of their rules. (Bava Batra 8b)

 

            The Rosh notes that the townspeople's authority to impose punishment is not limited to monetary penalties:

 

The townspeople are at liberty to inflict punishments for the infringement of their rules, all in accordance with the needs of the hour, in order to erect fences. If a person is poor so that a monetary penalty cannot be imposed upon him, they are at liberty to punish and penalize him with lashes and all kinds of punishments, until he complies with the law… This implies that the courts in each city are permitted to punish and chastise him who refuses to comply with their enactments with all kinds of punishments and bans. (Responsa ha-Rosh, 6, no. 27)

 

            The Tzitz Eliezer writes that from here we see that the community has the authority to bestow legitimacy on the use of a strike as a lawful sanction:

 

We may infer that if the townspeople deem it necessary and effective - in the case of a violation of the rules on the part of the employer - to give workers the right to declare a strike, that being the sole means by which they can pressure the employer, that it is within their authority to apply such a penalty, for such a penalty is no worse that the aforementioned penalties in the Rosh, which the townspeople are authorized to impose. After enacting such an enactment, and the employer and the workers know about it, then in the case of a transgression on the part of the employer, the workers can declare a strike, after they have clearly demonstrated that indeed the employer has violated the terms of their employment that have already been established as common custom. (Tzitz Eliezer, II, no. 23)

 

            Relying on communal enactments has a certain advantage over relying on the ordinances passed by members of a particular trade; for it is not clear how ordinances passed by members of a particular trade permit them to impair the rights of the employer. Here, however, we are dealing with enactments that are binding upon the entire community, workers and employers alike.[14] The Tzitz Eliezer concludes by noting that there are circumstances in which workers do not require a court in order to declare a strike:

 

In such cases where the worker is absolutely certain that his employer violated the terms of employment that had been established as common practice, the worker can take the law into his own hands in accordance with the penalty that the city officials established in such a case, as the Rambam rules that a person can the law into his own hand if he has the power to do so. Since he is acting in accordance with the law, he need not exert himself and come before the court. (Tzitz Eliezer, II, no. 23)

 

            Rav Chayim David Halevi writes in similar fashion, only that he adds the reservation that this only applies when it is clear and evident to all that the employer has broken an agreement or accepted practice, and even he admits to this.[15]

 

            Rav Kook writes that workers have the right to strike in order to force their employer to go with them to court and thus resolve the conflict between them:

 

A strike is permitted in order to force the employer to appear in a court or in order to fulfill a court ruling in connection with a dispute that had arisen, whether to fulfill the terms of employment or to improve the terms of employment. Consequently, it is clear that in any such dispute the workers must demand that the employer appear before a court. If the employer refuses, the workers have the right to apply pressure by declaring a strike, even without specific authorization on the part of the court. (Keter Efrayim, no. 19, in the name of Rav Kook)[16]

 

            Here too strikes are a legitimate sanction, but they are far less significant, for they are merely a tool to force the employer to appear in court.

 

IV. STRIKES OF TORAH TEACHERS

 

            We saw above that Rav Sh.Z. Auerbach extends his allowance to strike even to teachers of Torah. Rav Moshe Feinstein raises another factor that is relevant in this context. According to Halakha, the salary that Torah teachers receive is merely "sekhar batala," compensation for being idle and not engaging in other work, and not a direct wage for their teaching of Torah. This, Rav Feinstein argues, has ramifications regarding the laws governing strikes:

 

Regarding Torah teachers whether they are permitted not to teach themselves, and not to let others teach, when they are not being paid on time, or when their salary is low and they want it to be raised as necessary. I have already said that since the payments that they receive is merely "money for their idleness," i.e., they are paid to remain idle from work, and since they are idle, they are obligated by Torah law to teach for free – therefore, there is no room for them not to teach. In any event they are now idle from work, and they are obligated to teach their students.[17] Only that since what they are being paid does not meet their needs, they are permitted to seek out a living, and thus they will not teach. But if so, they cannot prevent others who so desire to teach…

This is by strict law. But if they are not receiving enough for their needs, so that it is difficult for them to teach well, and it is clear that if they don't teach for a day or two, their employers will pay them on time, and add what they need, then perhaps there is room to allow this, for it is time to act for God… One must distance oneself from this as much as possible. (Rav Moshe Feinstein, Iggerot Moshe, Choshen Mishpat, I, no. 59)

 

            Rav Chayim David Halevi relates to this issue from a different direction:

 

The obligation to teach Torah falls on the parents. Teachers, in return for the salary that is paid them, whether by the parents or by some public body that stands in their place, accept upon themselves the task of teaching Torah to the children of Israel as agents of their parents. Now, as long as the teachers' salaries are paid in a satisfactory manner, their agency and obligation stand. But the moment that they reach the conclusion that their salaries do not suffice…[18] they are no longer obligated, for they are no longer agents, their agency having been based on the payment of their salaries. (Rav David Chayim Halevi, Aseh Lekha Rav, II, no. 23)

 

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(Translated by David Strauss)

 

 

[1] That is to say, we assess how much of his wages a worker is willing to waive, so that instead of working he is able to sit idle.

[2] 1 sela = 4 dinars; 1 shekel = 2 dinars

[3] That is to say, even if it will cost the employer 6 dinars to hire a worker to complete the second half of the job, he must still pay the first worker in accordance with the value of the work that he did, i.e., 4 dinars, even though the employer will end up suffering a loss.

[4] According to Rabbi Dosa, the employer may deduct from the worker's wages whatever extra it will cost him to have the work completed, and pay him the rest. Thus, if it will cost him 6 dinars to complete the job, the first worker receives only 2 dinars.

[5] That is to say, the employer may hire another worker at a very high wage at the first worker's expense (even in excess of his wage, if the employer is in possession of some asset of the worker that he can confiscate), or he may mislead the first worker and make promises that he has no intention of keeping.

[6] For if from the outset he would not have been able to find other workers to do the job, he lost nothing by the worker's quitting. But if he would have been able to hire other workers, but did not do so because he relied on the worker whom he hired, that worker is responsible for his employer's loss.

[7] And similarly, the employer cannot withdraw from the agreement.

[8] There is room to disagree with this reasoning and say that the focus here is not upon the worker's subjective understanding, but rather upon his objective status: A worker who can quit, even because wages have gone up, is not a slave.

[9] This was discussed by Rav A. Shapira, Shevilin 33-35, 5744, p. 64.

[10] The most important difference that he mentions between the law of the Gemara and the situation under discussion is the practice of striking workers to prevent other workers from replacing them.

[11] The question, however, still remains why they are permitted to impair the rights of the employer.

[12] So too Iggerot Moshe, Choshen Mishpat I, no. 59; see also no. 58.

[13] Responsa Keter Efrayim, no. 19, p. 270.

[14] The Tzitz Eliezer writes that workers can agree among themselves not to break the strike.

[15] Rav Chayim David Halevi, Aseh Lekha Rav, V, no. 23, p. 179.

[16] We are dealing with a responsum recorded by members of Ha-Po'el Ha-Mizrachi from what they heard from Rav Kook, but apparently not in his own words.

[17] The Iggerot Moshe's position on this point is not entirely clear. Why must the teachers teach for free? What obligation do they have to other people's children? How is a teacher different than a computer technician who is not obligated to teach other people's children during his free time?

[18] Rav Halevi defines the appropriate wage: "Enough to support themselves, their wives and their households." Of course, this is not a precise definition.