One Breach of Basic Legal Principles Doesn’t Warrant Another


One standard common-law principal is that anyone is entitled to choose who represents him or her on any matter of personal interest.  Assuming your chosen representative agrees to represent you, the law respects your choice.

Moreover, the choice of a representative on matters that directly concern you is made individually, not collectively.  For example, if six people are accused of conspiring to commit a crime, the fact that four of them may favor having one particular attorney represent all six in no way constrains the right of the other two to choose another attorney or attorneys for themselves.

Unfortunately, in the U.S. federal labor policy routinely breaches the personal right to choose one’s own representative. If a majority of the front-line employees in a workplace sign authorization cards indicating they wish to be represented by a particular union on compensation and work-rule matters, or if the majority of those casting ballots in an election vote for unionization, then any and all employees opposed to being represented by that union lose their freedom to say “No.”

In American Communications Association v. Dowds (1950), the U.S. Supreme Court recognized that Congress’s purpose in authorizing “exclusive” representation was to foster “strong unions,” not to bring any benefit to employees who don’t wish to be unionized.  In fact, under the National Labor Relations Act (NLRA), “individual employees are required by law to sacrifice [bargaining] rights which, in some cases, are valuable to them.”

Basic legal principles and commons sense tell you an employee ought to be free to refuse union representation he or she doesn’t want.  That means that, if the representation is foisted on you against your will, you shouldn’t be forced to pay any money for it.

In Harris v. Quinn, a case in which a National Right to Work attorney will be representing a number of Illinois clients in oral arguments before the U.S. Supreme Court next month, the plaintiffs have already pointed out that it is “well established” in law “that individuals are not obligated to pay for unsolicited services they are forced to accept.”

In a brief filed to the High Court last month (see the link below), the plaintiffs cite in support of this point Boston University’s Andrew Kull, an expert on the law of equity.  A number of years ago, Kull was assigned by the American Law Institute (ALI) as the reporter for the Restatement (Third) of Restitution and Unjust Enrichment (R3RUE).  With seven drafts completed, final approval of the R3RUE was granted by the ALI in 2010.

The Harris plaintiffs quote from Section 2(4) of the R3RUE:

Liability in restitution may not subject an innocent recipient to a forced exchange:  in other words, an obligation to pay for a benefit that the recipient should have been free to refuse.”

In the common law, any worker who doesn’t wish to be represented by a particular union clearly should be allowed to refuse that representation.  The fact that statutory law and the courts in the U.S. have permitted the infringement of that right for several decades should not be used as justification for forcing any worker to pay dues or fees to a union he or she doesn’t want.  In short, one breach of basic legal principles doesn’t warrant another.

As Boston University’s Andrew Kull, an expert on the law of equity, has observed, there is no “obligation to pay for a benefit that the recipient should have been free to refuse.” In other words, an “innocent recipient to a forced exchange” owes the “donor” nothing. Image: Osgoode Hall Law School

Brief of petitioners Pamela Harris, et al. filed.