The Instigator
F-16_Fighting_Falcon
Pro (for)
Winning
13 Points
The Contender
Ragnar_Rahl
Con (against)
Losing
4 Points

Firing decisions based on union status should be outlawed - NEW

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Post Voting Period
The voting period for this debate has ended.
after 5 votes the winner is...
F-16_Fighting_Falcon
Voting Style: Open Point System: 7 Point
Started: 9/20/2011 Category: Society
Updated: 2 years ago Status: Post Voting Period
Viewed: 2,146 times Debate No: 18409
Debate Rounds (4)
Comments (12)
Votes (5)

 

F-16_Fighting_Falcon

Pro

I thank Ragnar_Rahl for agreeing to debate this topic with me.

Resolution:
Firing decisions based on union status should be outlawed.

Union: http://en.wikipedia.org......

Character Limit: 6000

Rounds
Round 1: Acceptance only
Round 2: Opening arguments/Rebuttals
Round 3: Rebuttals/Responses
Round 4: Closing, no new arguments

Pro will argue that employers should not fire employees based purely on Union Status. Firing based on breaking policies or laws as part of the union is okay. Con will argue that it is okay to fire an employee just because he is in a union even if he was never part of a strike/violence or any other illegitimate union activity.
Ragnar_Rahl

Con

Accepted.
Debate Round No. 1
F-16_Fighting_Falcon

Pro

I thank Con for accepting and apologize for the late (and short) response, as I have been busy. However, I wanted to make sure I let my opponent know my line of argumentation as well give him something to respond to. I will briefly outline some of my major contentions here which I will expand and consolidate with more sources in round 3.


C1) Necessity of Unions
Unions may be necessary for certain workers. Employers should not fire workers for being in a union as it may be the only way for certain laborers to find fair working conditions. There is a huge imbalance in power from an employer to an employee as the employee's current need for a job far outweighs the employer's need to immediately fill a position [1].


C2) Opens the potential for abuse
When employers realize that they can fire employees just because they are part of a Union, they can easily fire their Union employees and replace them with temporary workers who are more desperate to get a job and willing to accept worse conditions. They can also unfairly pressure employees into leaving the Union in order to keep their jobs. This would create worse conditions for the workers and undermine the power of the Union to protect the workers. The National Labor relations act (NLRA) requires employers to negotiate with the Unions in good faith, and it is acts like these that enable the Unions to protect worker's rights.


C3) Not a "just cause"
Most union employees cannot be fired without "just cause" in contrast to non-union workers who are generally employed at will and can be fired for any reason [1]. For example, if an employee A is part of Union XYZ, and members of Union XYZ in a different location striked against the company and refused to work, the employer firing employee A just for being a part of that Union through no fault of his own is unfair to the employee and does not constitute just cause. To summarize, Union members may not have any control over what other people in the Union do, and holding them responsible for the activities of the Union is unfair to them.


Sources
[1] http://www.howstuffworks.com......

Ragnar_Rahl

Con

Employers are the owners of the workplace. They have created the workplace and every position labor fills within it, or purchased the rights from those who did. This is an important point from which everything fair and just about workplaces can be derived.

Necessity has nothing to do with the rights of anyone. The only fair working conditions are A. Those you can find working for yourself-- or B. Those agreed upon by the freely contracting. It is fair that employers have a better bargaining positoon if they offer the scarcer part of the work (and if they don't, they won't have a better bargaining position). The employee's need for a job simply cannot be legitimately weighed against the employer's need to fill a position for anything important to the resolution-- need is irrelevant.

If employees exist who will accept less for a certain amount of work, it is those people who OUGHT be selected to fill the position. This is not "Abuse," it is a positive. There is nothing unfair about an employee having to choose between satisfying an employer-- by changing union status or anything else-- and being fired-- they were hired to satisfy the employer in exchange for their salary. The existence of the National Labor Relations Act does not prove that it should exist, or that anyone has a "Right" to be employed at all, let alone under a certain set of conditions.

Anytime the owner of a business terminates employment, unless specifically forbidden by voluntary contract, their cause was inherently just-- they are the owners of the business, they justly have freedom of association, and consequently of disassociation. And yes, being a part of a union is the "Fault" of the employee. It's no one else's fault, the employee decided to do it, knowing the employer's policies. They weren't the ones striking? Who cares? It's perfectly just for the employer to choose to fire them even if no one was striking at all.

Your source does not appear to mention the statement you cited it next to, and that statement isn't something you should source anyway-- it's not a data point, it's a moral judgment, which means you need abstract reasoning, not "sources" for it.

Debate Round No. 2
F-16_Fighting_Falcon

Pro

An important point that has cropped up in this debate is whose rights are being infringed: employer's or employee's? In this situation, I will show why the rights of the employee must be considered before making a decision to fire them.

My opponent says that everything that is fair and just must be decided based on employer's rights. This is not accurate. Employees devote their entire working day to working for the employer. Their livelihood depends on their ability to work. When evaluting a decision to fire, a fair decision is one which takes both the employer's as well as the employee's rights into consideration.

Before the 1960s, courts viewed the relationship between employer and employee as being on equal footing in terms of bargaining power [2]. However, this began to change in the 1960s when employees began to form labor unions. Courts and legislatures began to recognize that employers frequently have structural and economic advantanges when negotiating with potential and current employees. It was recognized that employment was central to the person's well being. There is also the fear of being terminated unjustly. For this reason, there are exceptions to the at-will employment doctrine two of which are the implied contract exception and good faith exception. [2]

My opponent does not argue against the fact that Unions are necessary for certain classes of employees. Since they have far less bargaining power than the employer, the employees may be required to join a Union in order to negotiate fair wages and working conditions.

My opponent says that employees are hired to satisfy the employer in exchange for their salary. This isn't entirely true. Employees are hired by their employers to do a specific job, and as long as that job is being done, and all of the employer's rules are being followed, they should continue to be able to work with that employer. The employer has no right to control what the employee does outside of the workplace unless specifically stated in the employee's contract. To choose between leaving the Union or getting fired is unfair as it infringes on what the employee can do in his own time. It creates undue pressure for the employee due to the large difference in bargaining power which I have outlined above.

My opponent says that anytime a business terminates employment not forbidden by a written contract, their cause is just. That isn't true. There are implied contracts that an employer must abide by in addition to any explicit contracts.

Kmart Corporation v. Ponsock, the employee who worked for the company until almost retiring was terminated just before he could retire [2]. He had no employment contract and had at-will employment. However, the court held that termination was unjust because Kmart fired the employee just to aviod paying him a pension once he retired. Now my opponent would say that they have a right to fire the employee at any point since it was at-will employment, but that is not true. All employment including at-will employment must be held to certain rules and regulations to prevent firing in bad faith.

It is obvious that if the employee signs a contract saying that he won't join a Union, then he shouldn't be allowed to. If he signs a contract saying that he should be allowed to join, then he should be allowed. I am considering the scenario of employees who did not sign any contract as far as their Union status goes and employers have no policies regarding joining Unions. Now the employer is free to fire the employee for no reason if that is truly the case. However, they cannot fire him just for joining a union. They should also be able to prove that they did not just fire him for joining a Union and then told the employee that he was fired without cause.

To require employers to provide valid grounds of an employee's discharge does not unduly restrict employers, it merely provides a balance of power. There is no true freedom of contract between an employer and an employee. The individual employee in most cases has no power or ability at all to negotiate an employment contract more favorable to themselves. [2] To fire an employee just because he joins a union violates employee's rights which must be considred above the rights of the employer when bargaining power and structural and economic advantages of the employers are taken into consideration.

Sources
[1] http://jobs.stateuniversity.com...
[2] http://www.bls.gov...
Ragnar_Rahl

Con


There is no such thing as a right to a job, unless a contract specifically states otherwise.

Stating that a court has certain doctrines does not establish that it ought.

"unless specifically stated in the employee's contract."
Outlawing firing based on union status inherently outlaws statements allowing it in the employee's contract. Your "unless" is incompatible with the resolution, which means that you effectively concede that resolution. Regardless, firing is not "control of what the employee does outside the workplace." It may be persuasive, but persuasion is not force.

Kmart vs Ponsock was decided unjustly, and you have no argument to the contrary, merely an assertion. Your idea of "Bad faith" is simply smart bargaining.
How the hell would he get a pension without an employment contract that specifies a pension anyway... laws? That's further interference with the rights of Kmart.

"It is obvious that if the employee signs a contract saying that he won't join a Union, then he shouldn't be allowed to. "
Since such a rule inevitably contradicts "Outlawing firing based on union status," you effectively concede. You are now effectively arguing that the "Default rule" should be for just cause firing, which differs from the resolution. I disagree with that position, but whether that position is right or wrong will not save you.

"They should also be able to prove that they did not just fire him for joining a Union and then told the employee that he was fired without cause."
This notion shifts the burden of proof to the accused, which I'm sure you'll recognize as injustice. A world in which anyone at all is burdened to prove their innocence is a world in which innocent people lose their liberty at the whim of anyone else, since it should be no problem to fabricate an an unfalsifiable accusation.

"There is no true freedom of contract between an employer and an employee. The individual employee in most cases has no power or ability at all to negotiate an employment contract more favorable to themselves. "
Freedom doesn't require power, it only requires the option to walk away.

There is, again, no special set of rights called "Employee's rights," no right to a job, etc. Even if there were, the resolution is an ad hoc application of such a principle, useless for thorough implementation of it (as such would require mandatory hiring rather than bans on firing).

Debate Round No. 3
F-16_Fighting_Falcon

Pro

To clarify what this debate is about, the resolution asks whether the actual decision to fire based on Union status should be outlawed. There are three scenarios to this:
1) The employee signs a contract which does not allow him to join a Union
2) The employee signs a contract which allows him to join a Union
3) The employee is employed at will, either signed no contract or the contract makes no mention of Unions

This debate is of course best suited for category 3 and neither I nor my opponent will be considering either of the other 2 cases as agreed upon in the comments. I will summarize 5 major points here.

1) "Right" to a job
My opponent says that there is no such thing as a right to a job. There certainly isn't. The resolution does not guarantee this. Outlawing firing based on Union status does not give employees a guaranteed right to a job and certainly does not concede the resolution. All it does is protect the employee from unjust dismissal. In a similar way, it is illegal to fire employees based on their race, sex etc. Would my opponent consider this as an employee's right to a job? It isn't. It just prohibits discrimination.

Now my opponent may argue that joining a Union is something that the employee can choose to do but race, sex etc can't be chosen. However, I already established that joining a Union may be necessary for some employees, a point my opponent does not argue against (he just says necessity is irrelevant but concedes that it may be necessary for laborers to join a Union). This makes the concept of "choice" invalid as the employee might theoretically have a choice but realistically has no choice due to the fact that they may not get fair wages or working conditions if they don't join a Union.


2) "Persuation" is Force
My opponent makes the mistake of saying that employees being asked to leave a Union "may be persuasive but is not force". "Persuation" by the employer amounts to force because of the vast difference in bargaining power. It may not be physical force, but if the alternative to the employee is to be unemployed and not be able to provide for themselves, there is no real choice here. Employees cannot "walk out" of a job the same way a buyer walks out on a car dealer. "Walking out" is not a realistic option due to the difference in bargaining power. Yes, they can get an another job, but until they do, they would be unemployed. Employees are fighting for their lives while employers are fighting to fill one position.


3) Firing in bad faith
My opponent says that Kmart vs Ponsock was decided unjustly! With that, he contends that employers should be able to fire employees just before they retire in order to avoid paying the pension and concedes that it was an accurate analogy with firing based on Union status.

Now the reason it is unjust is that it is an act of bad faith. Employers should not be allowed to abuse the defintion of at-will employment to suit their needs. Since the employee in question (Ponsock) had been working at Kmart for over a decade, there was an implicit expectation that he would be allowed to retire and get a pension as long as his performance was up to Kmart's standards. When Kmart allowed him to work for such a long time, it made an implicit contract with him.

Con might say that written contracts are the only ones that are valid. However, courts have long recognized that it is not just the letter of the law but the spirit of the law that is important. Firing him with no cause just before retirement is an abuse of implicit contract as well as an act of bad faith. Con concedes that this is an acceptable analogy to firing over Union status so firing based on Union status is an act of bad faith as well.


4) Proof that dismissal wasn't unjust
Con says that having to show that dismissal was unjust puts the Burden of proof on the accused. That is not the case. Cases relating to unjust dismissal are decided on preponderance of the evidence. It goes to whichever side proves that their proposition is more likely than not [1]. Having to show that dismissal was not an act of bad faith is a safeguard against abuse. Considering the difference in bargaining power, these safeguards more than justify the fact that employers need to explain themselves if they dismiss someone unjustly.

As mentioned before, the rights of both employers as well as employees must be considred when decided what is fair and just in a workplace. While employers may own the workplace, employees spend their entire day there and their livelihood depends on it.


5) Freedom of contract
My opponent says that freedom doesn't require power, it only requires the ability to walk away. The question we have to ask is: Does the employee actually have the ability to walk away? Except for the employees who have already started a job search and actually have an offer on the table, most employees do not have the ability to "walk away".


Conclusion
Employers frequently have structural and economic advantanges when negotiating with potential and current employees. This gives rise to a huge difference in bargaining power. Due to this, it may be necessary for some workers to join a Union as it may be the only way for them to secure fair wages and working conditions. To fire an employee just because he is doing something that is necessary for him in order to profit from it is an act of bad faith. To prevent such acts from employers, employers should not be allowed to fire employees based on Union status.

Sources
[1] http://en.wikipedia.org...;
Ragnar_Rahl

Con

Without a right to a job, it is impossible for a dismissal to be unjust.

It is not unjust for an employee to be fired for race, sex, etc, and, indeed, the historical presumption of many of the authorities who outlawed such things was a "right to a job." Those should be legal as well. The employer is the only person with the right to determine the criteria by which he will hire or fire.

Failure to have another choice that results in a certain arbitrarily "fair" level of wages or working conditions does not mean failure to have another choice.

"Bargaining power" consists of how much you have to offer, it has nothing whatsoever to do with force.

"Providing for oneself" was done long before employment was ever invented, it is not the employer's responsibility to provide for someone. Since it is not the employer's responsibility it cannot justify a burden on the employer.

At will is at will, it is impossible to "Abuse the definition," as all things the employer wills fall under it.

Kmart is not responsible for the employee's expectations. If he wishes to make them responsible, he should pursue a contract before working for a decade. Implied contracts may have some role in limiting liability (for example the implied consent to be punched by stepping into a boxing ring), but the notion of an implied contract that imposes a positive burden on someone is an extraordinary legal device which requires extraordinary justification my opponent has failed to provide. My opponent has not answered the question about how this employee got his absurd expectation to receive a pension not mentioned in any contract. There is nothing inherent to working for a decade that implies a pension.

"Courts have long recognized" is an ad authoritatem.

Declaring that the burden of proof is preponderance in no way disproves that the burden of proof has been placed on the accused, making this argument irrelevant to my point Requiring a preponderance burden on the accused does not differ greatly in its injustice from requiring that the accused meet beyond a reasonable doubt or some other burden, the point is that the burden should never be on the accused. Furthermore, the notion of ever deciding a case on preponderance-- of ever subjecting someone to legal force on no more basis than "Meh, probably"-- is problematic in itself.

A difference in bargaining power is justified by the difference in what the parties bring one another, and does not remotely justify such a miscarriage of justice.

An employee happening to be a helpless dependent has nothing to do with "the rights of the employee," a construction my opponent has already conceded he will not uphold when concretized-- people speaking of "The rights of the employee" as some special class tend to refer to "Right to a job."

The existence of negatives to walking away does not establish an inability to do so.



Debate Round No. 4
12 comments have been posted on this debate. Showing 1 through 10 records.
Posted by F-16_Fighting_Falcon 2 years ago
F-16_Fighting_Falcon
Kinesis, it was agreed upon by me and my opponent that the resolution did not cover instances of explicitly being allowed or disallowed from joining based on a contract. It only covers category 3 which if you notice, my opponent did not disagree with.
Posted by F-16_Fighting_Falcon 2 years ago
F-16_Fighting_Falcon
Okay.
Posted by Ragnar_Rahl 2 years ago
Ragnar_Rahl
I'll leave that up to the observer, there's only one round left and I don't really care who wins the votes. Don't address the points about 1 and they won't come up again.
Posted by F-16_Fighting_Falcon 2 years ago
F-16_Fighting_Falcon
I think it is obvious that #3 is the position of the resolution. Even if it is not obvious to you, if you agree to only debate #3, I won't bring any more arguments such as "unless it is specified in the contract". We would just assume at-will and debate whether firing based on Union status is just. If not, it becomes a big semantic argument about what the resolution is, and of course we would have to bring #2 in as well.
Posted by Ragnar_Rahl 2 years ago
Ragnar_Rahl
That's not the plain position of the resolution, and it's certainly not the only debatable one (again, ask the government, it presently takes the position you describe as "too high a burden.")

If someone says outlaw drugs, and then someone else says outlaw unprescribed drugs, those are different resolution.
Posted by F-16_Fighting_Falcon 2 years ago
F-16_Fighting_Falcon
As for your drug analogy, one can be said to outlaw drugs but make an exception for drugs prescribed by a doctors. At this point, outlawing would only include unprescribed drugs.
Posted by F-16_Fighting_Falcon 2 years ago
F-16_Fighting_Falcon
Well, the position I was arguing for was that if employment was at-will with no indication of Union status, then firing based on Union Status should be outlawed. The employer can make a contract with the employee either explicitly allowing them to join Unions or explicitly disallowing them from joining Unions. But the only debatable position is when nothing regarding Unions is said.
Posted by Ragnar_Rahl 2 years ago
Ragnar_Rahl
"against one" meaning "Against firing decisions based on union status in situation one."
Posted by Ragnar_Rahl 2 years ago
Ragnar_Rahl
There's nothing obvious about it. Indeed, the status quo states that such contracts as described in one are invalid. Are you saying that it's an unreasonable presumption that when both the status quo and the plain wording of the resolution are against one, that you are against one? :P

Outlawed means outlawed entirely, unless you specify an exception at the outset.
Posted by F-16_Fighting_Falcon 2 years ago
F-16_Fighting_Falcon
The resolution asks whether the actual decision to fire based on Union status should be outlawed. There are three scenarios to this:
1) The employee signs a contract which does not allow him to join a Union
2) The employee signs a contract which allows him to join a Union
3) The employee is employed at will, either signed no contract or the contract makes no mention of Unions
Obviously, 1 would place an unfair burden of proof on me and 2 would place an unfair burden of proof on you. 3 is the situation that can be logically argued.
5 votes have been placed for this debate. Showing 1 through 5 records.
Vote Placed by wiploc 2 years ago
wiploc
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Reasons for voting decision: Con says the K-mart case was decided unfairly, which alienated me entirely, as if Con had said he had no interest in fairness. What if a factory manager beat a union president in a poker game, so the union made that manager's company pay higher wages than any other company? Would that be fair? According to Con, pretty much anything you can get away with is fair, which is a recipe for an ugly world.
Vote Placed by Double_R 2 years ago
Double_R
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Reasons for voting decision: Both participents had good arguments, but I thought this debate went slightly off course from the resolution. Laws are based on what is beneficial to society, to that end I found Pros arguments more impactful then Cons by showing the effects of Cons position. Con seemed to rely on simply "poking holes" in Pros arguments without any real case that these rights of employers should not be outlawed.
Vote Placed by feverish 2 years ago
feverish
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Reasons for voting decision: A real clash of values here, but Pro seemed to provide a lot more justification for his position than Con. Con tried to force a concession with the "right to a job" strawman and the suggestion that allowing contracts with a no union clause is the same as firing existing employees for joining the union when there is no such clause in place. Pro stood his ground and argued the distinctions here, establishing that employment contracts should entail responsibilities for employers too.
Vote Placed by Steelerman6794 2 years ago
Steelerman6794
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Reasons for voting decision: Con effectively pointed out Pro's logical fallacies while establishing both philosophical and practical positions for why firing decisions based on union status should not be outlawed. Key issues that went to Con include the problematic role of "implied contracts" and whether anyone has the "right" to a job in the first place. Pro lost conduct points because of the posted evidence link that had nothing to do with the stated claim.
Vote Placed by Kinesis 2 years ago
Kinesis
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Reasons for voting decision: I suppose RR did drop the point about contracts in the last round. Since I otherwise agreed more with Pro's case, points go to Pro then.