Kansas Attorney General Opinion 1992-042

ROBERT T. STEPHAN
ATTORNEY GENERAL
March 24, 1992
ATTORNEY GENERAL OPINION NO. 92- 42
The Honorable Frank D. Gaines
State Senator, 16th District
State Capitol, 140-N
Topeka, Kansas 66612
Re: Constitution of the State of Kansas --
Miscellaneous -- Membership or Nonmembership in
Labor Organizations; Representation Fee
Labor and Industries -- Employer and Employee
Relations -- Rights of Employees
Synopsis: 1992 Senate Bill No. 174 does not violate the
provisions of article 15, section 12 of the Kansas
constitution. Cited herein: K.S.A. 44-803;
44-809; Kan. Const., art. 15, sec. 12.
*
Dear Senator Gaines:
As Senator for the sixteenth district you request our opinion
as to whether the provisions of 1992 Senate Bill No. 174
contravene the provisions of article 15, section 12 of the
Kansas constitution.
Senate Bill 174, as amended by the Senate committee on labor,
industry and small business, amends K.S.A. 44-803 by adding
the following language:
"(b) Any labor organization that has been
certified or formally recognized as the
exclusive bargaining agent under the
national labor relations act and that is

required by such federal act to represent
all members of the bargaining unit whether
members of the labor organization or
not shall have the right to bargain for
a fair share service fee to be assessed
may assess a fair share representation fee
to those nonmember employees who by
federal mandate the labor organization
must represent to the same extent as dues
paying members of such labor organization
for representation services provided to
such nonmember employee pursuant to a
specific request made by such nonmember
employee to the labor organization for
representation of such nonmember employee
by the labor organization in any matter
relating to an individual grievance
concerning such nonmember employee.
"(c) The fair share service
representation fee assessable to employees
not members of the labor organization
shall not exceed the actual cost of
representing such nonmember employees
in all aspects of such nonmember
employees conditions of employment any
matter relating to an individual grievance
concerning such nonmember employee as
provided in subsection (b). Such service
fee shall not include the cost of any
additional benefits provided to union
members through their dues but shall be
no more than the actual cost of
representing such nonmember employees to
the extent required by the national labor
relations act.
"(d) Failure of a nonmember employee to
pay such nonmember employee's fair
share service representation fee as
provided in this section shall give the
labor organization the right to bring an
action in any court of competent
jurisdiction for the payment of such
service fee, together with costs and
attorney fees. An employee's failure to
pay such service fee shall not prejudice
the employee's right to continued
employment with the employer. It is
unlawful for a labor organization or an

employer to discriminate against an
employee in any way because of the failure
of an employee to pay the fair share
representation fee. Payment or nonpayment
of the fair share representation fee shall
in no way be a condition of employment.
"(e) The labor organization may bargain
with the employer, subject to the
individual written authorization of a
nonmember employee, for a deduction from
the nonmember employee's wages the amount
of the fair share service
representation fee determined as provided
in this section. The written
authorization of such nonmember employee
to have the fair share service
representation fee deducted from the
employee's salary or wages shall remain
effective for not less than 100 days and
shall be terminated anytime thereafter
upon 30 days' notice to the employer and
the labor organization of the employee's
desire to terminate the authorization for
the fair share service
representation fee deduction from the
salary.
"(f) A change in the amount of the
fair share service fee to be deducted
cannot be made more often than twice in
any fiscal year.
"(g) A nonmember employee may renew an
authorization to deduct the fair share
service representation fee after such
fee is terminated as above provided upon
10 days' notice to the employer and the
labor organization.
"(h) Payment of all moneys deducted from
the employer's payroll shall be paid by
the employer to the labor organization."
Article 15, section 12 of the Kansas constitution has been
interpreted as "prohibiting compulsory membership in a labor
organization as a condition of employment or continued
employment, includ[ing] by necessary implication a
prohibition against forced payment of initiation fees, union
dues and assessment, or the equivalent, by a worker to a labor

organization as a condition of employment or continued
employment." Higgins v. Cardinal Manufacturing Co., 188
Kan. 11, 23 (1961). (Emphasis added).
Furthermore, K.S.A. 44-803, while allowing employees to join
labor organizations, also spells out that such employees
"shall also have the right to refrain from any or all such
activities" and no person shall be allowed to use means to
"coerce or intimidate any employee in the enjoyment of his or
her legal rights (K.S.A. 44-809)."
These provisions and the case law interpreting them emphasize
that article 15, section 12 of the Kansas constitution and
K.S.A. 44-801 et seq. were drafted so as to prohibit
"agency shops" and therefore allow employees the right to work
without being forced into the membership of the union.
Senate Bill No. 174 states that if a nonmember requests the
union to represent the nonmember regarding a grievance then
the union may assess a fair share representation fee. The
bill goes on to state that "[s]uch service fee shall not
include the cost of any additional benefits provided to union
members through their dues."
It is our opinion that because the provisions of Senate Bill
No. 174 allow unions to assess a representation fee only if
the nonmember seeks the union's assistance, this allows the
employee the ability to exercise his or her freedom of choice
regarding who shall represent him or her in the grievance
matter. There does not appear to be any language which
coerces or intimidates the employees in this decision making
process.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane .Stattelman
Assistant Attorney General
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