Untitled Texas Attorney General Opinion

THEA~TORNE~GENERAT~
OF TEXAS
Au-. TEXAN 78711

August 30, 1974

The Honorable Jim Clark Opinion No. H- 389
Chairman, House Committe on Labor
P. 0. Box 2910, Capitol Station Re: Validity of Art. 4528c,
Austin, Texas 78767 $ lOA, V. T. C. S., as it
relates to LVNs.

Dear Representative Clark:

you have asked &&her Article 45~284; $lOA. V.. T. C. S., prohibiting
the membership of licepied vocational nurses’ (LVNs) in organizations
either recognizing the right ,to strike or permitting organized work stoppages,
violates any provision of the Constitution of the State of Texas or the
Conqtitution of the United Stat,es.

Article 4528~. $ lOA, V. T., C. S., provjdes that:

It ‘shall be unlawful for any individual who has
been licensed as a Licensed Vocational Nurse
to be a member of any group, organization,
association, or union which advocates or~secog-
nizes the right to strike, or which permits its
members to engage in an organized work stoppage.
Any person who has been licensed as a Licensed
Vocational Nurse and who violates this Section of
this Act, shall have his or her license suspended
for a period of two (2) years, and the Board shall
thereupon enter an order to such effect upon its
minutes. It shall be incumbent upon the individual
after the expiration of two (2) years to apply for
a new license as a Licensed Vocational Nurse
should such individual desire to engage in such
.work as herein authorized by this Act. It is the

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The Honorable Jim Clark page 2 (H-389)

declared public policy of this State that a person
who requires nursing care should be protected from
organized work stoppages of any kind or character.
(Emphasis supplied).

The statute clearly intends to penalize mere membership in a
labor organization which recognizes the right to strike. Its provisions
are in contrast to other Texas statutes which declare the public policy
of the State to be:

. . . the right of persons to work shall not be
denied or abridged on account of membership
or non-membership in any labor union or labor
organization and that in the exercise of su&h]iights
all per’sons shall be free from’thrdats. force,
intimidation
,. or coercion. ” Art. 5154g. 8 1, Vi T.‘C. 5;.

The state’s policy is not the same for public employei~s.‘.’ Article
5154~. $4, V. T. C.S. Limits are placed on the authority of public officers
to enter into a collective bargaining contract. Article-515&“$1. State
employees may forfeit the privilege of presenting their grievances to the
government through a representative if the right to strike is claimed by
their representative organization.Article 5154q § 6; Amalgamated Transit
Union, Local Div. ‘1338 v.‘~ Dallas gublic~ Transit Board.--430 S. W. 2d 107,
119 (Tex. Civ. Appr, Dallas 1968, writ,ief.~ n. r~.e.:, certr den. 396 U.S.
838); Dallas Independent School District v. American Federation of State,
County and Municipal Employees, Local Union No. 1442, 330 S. W. 2d
702 (Tex. Civ. App., Dallas, 1959, writ ref. n. r. e.).

The Texas Supreme Court construed Article 5154c, in Lunsford V.
City of Bryan, 297 S. W. 2d 115,117 (Tax. 1957). and determined that the
Legislature intended to protect “the right of membership in a union as
well as the right of nonmembership. ”

The U.S. Supreme Court has, had before it a state statute which
permitted the prosecution of a public employee for membership in an

p. ,1824
The Honorable Jim Clark page 3 (H-389)

organization”‘known” to have unlawful purposes and objectives. Elfbrandt
v. Russell, 384 U.S. 11 (1966). The statute was declared unconstitutional
as violative of the freedom of association protected by the First Amend-
ment through the Due Process Clause of the 14th Amendment.

Those who join an organization but do not share
its unlawful purposes and who do not participate in its
unlawful activities surely pose no threat, either as
citizens or as public employees. Laws such as this
which are not restricted in scope to ,those who join
with the ‘specific intent’ to further illegal action
impose, in effect, a conclusive presumption that the
member shares the unlawful aims of the organization. . .

,A law which applies. to membership without the
‘specific intent’ to further the illegal aims of the
organization infringes unnecessarily on protected
freedoms. It rests on the doctrine of ‘guilt by
association’ which has no place here. 384 U.S. at
17, 19.

The Seventh Circuit has held, in part on the authority of Elfbrandt,
supra, that allegations of discrimination by a school ,district against ,a
teacher for union associations state a claim under the Constitution and,
laws of the United States for purposes of federal court jurisdiction under
42 U.S. C. $1983. McLaughlin v. Tilendis, 398 F. 2d 287 (7th Cir., 1968).

. . . Even if this record disclosed that the union
was connected with unlawful activity, the bare
fact [of] that ,membership does not justify charging
.members with their organization’b misdeeds. 398
F. 2d at 289.

The Fifth Circuit has agreed with McLaughlin, supra, reasoning that
illegal intent is necessary to justify the State’s interference with a person’s
associational freedoms. Orr v. Thorpe, 427 F. 2d 1129 (5th Cir., 1970).

,p. 1825
The Honorable Jim Clark page 4 (H-389)

Similar results have been reached by the Tenth Circuit, Lontine v.
VanCleave, 483 F. 2d 966 (10th Cir., 1973); by the Eighth Circuit,
American Federation of State, County, and Municipal Employees v.
Woodward, 406 F. 2d 137 (8th Cir. 1969). And see, Thomas v. Collins,
325 U.S. 516 (1945); Tischler v. Board of Education, 323 N. Y. S. 2d
508 (App. Div. ,. 1971). Cf., United Federation of Postal Clerks v. Blount,
325 F. Supp. 879 (D. D. C., 1971), aff’d. on appeal, 404 U. S. 802 (1971).

Under $lOA an LVN’s license must be suspended for two years if
he or she becomes a member in a prohibited organization. The penalty
is tiitkr limited to members who strike, nor to membership accompanied
by a specific intent to participate in unlawful activities. Therefore we
believe that, .underthe above discussed authorities, $ 10A. prohibiting
mere membership in a labor union which recognizes the right to strike
would be held to infringe unnecessarily onfneedims protected by the
Due Process Clause of the 14th Amendment.

SUMMARY

Section 1OA of Article 4528c, V. T. C. S., prohibiting mere
membership by LVNs in organizations which recognize
the right to strike, is unconstitutional since it infringes
unnecessarily on the freedom of association protected
by the First Amendment to the United States Constitution.

Very truly yours,

Attorney General of Texas

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The Honorable Jim Clark page 5 (H-389)

DAVID M. KENDALL, Chairman
Opinion Committee

lg

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