            THE     ATTORNEY           GENERAL
                        OF   TEXAS

                         June 29, 1987




Eonorable Lloyd Criss                    Opinion No. JM-732
Chairman
Committee on Labor h Employment          Re: Validity of section 5 of
   Relations                             article 5154a, V.T.C.S., which
Texas Eouse of Representatives           requires labor union organizers
P. 0. Box 2910                           to register with the secretary
Austin, Texas   78769                    of state

Dear Representative Criss:

      You inquire about the validity of section 5 of article 5154a,
 V.T.C.S., which requires labor union organizers soliciting union
 members in Texas to carry an organizer's card issued by the secretary
 of state. You note that in 1945 the United States Supreme Court held
 this provision to be unconstitutional as applied to a national labor
 leader who addressed a large group meeting in Texas. Thomas V.
 Collins, 323 U.S. 516 (1945). You state that subsequent court
'decisions may bear on the interpretation of this statute and wish to
 know whether it should still be considered valid.

     Article 5154a, V.T.C.S., regulates labor unions. A purpose of
the statute is to protect workers. V.T.C.S. art. 5154a. 51.

     Section 5 of article 5154a. V.T.C.S., provides as follows:

             sec. 5. All labor union organizers operating
          in the State of Texas shall be required to file
          with the Secretary of State, before soliciting any
          members for his organization, a written request by
          United States mail, or shall apply in person for
          an organizer's card, stating (a) his name in full;
          (b) his labor union affiliations, if any; (c)
          describing his credentials and attaching thereto a
          copy thereof, which application shall be signed by
          him.   Upon such applications being filed, the
          Secretary of State shall issue to the applicant a
          card on which shall appear the following: (1) the
          applicant's name; (2) his union affiliation; (3) a
          space for his personal signature; (4) a designa-
          tion, 'labor organizer'; and, (5) the signature of
          the Secretary of State, dated and attested by his




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Honorable Lloyd Criss - Page 2     (JM-732)




         seal of office.     Such organizer shall at all
         times, when soliciting members, carry such card,
         and shall exhibit the same when requested to do so
         by a person being so solicited for membership.
         (Emphasis added).

"Labor Organizer" is defined as

          any person who for a pecuniary or financial
          consideration solicits memberships in a labor
          union or members for a labor union. . . .

V.T.C.S. art. 5154a. 52(c). A labor organizer who violates section 5
or any other provision of article 5154a. V.T.C.S.. is "deemed guilty
of a misdemeanor" and upon conviction is subject to a fine not to
exceed five hundred dollars, confinement in the county jail not to
exceed 60 days, or both a fine and imprisonment. V.T.C.S. art. 5154a,
811. We understand that the secretary of state's duty to issue this
card is purely ministerial. See 1 T.A.C. 873.3 (1976) (upon receipt
of an application, secretary shall issue card).         The judicial
decisions on licensing provisions for union organizers raise the
following issues: (1) Whether section 5 of article 5154a, V.T.C.S.,
is consistent with the speech and association rights protected by the
First and Fourteenth Amendments to the United States Constitution and
(2) whether it is preempted by the National Labor Relations Act, 29
U.S.C. sections 151-57 (1982).

     Thomas v. Collins, *,      involved the application of section 5,
article 5154a. V.T.C.S., to a labor leader who gave a speech
advocating unionization. The Texas Supreme Court found the provision
constitutional in Ex parte Thomas, 174 S.W.2d 958 (Tex. 1943). The
United States Supreme Court reversed, holding that the provision could
not be constitutionally applied to a person who went to Texas for a
single purpose -- to make a speech proclaiming the advantages of
unionization and encouraging workers to join a particular local in
connection with a campaign for members. 323 U.S. at 533. The Court
stated that

          [w]e think a requirement that one must register
          before he undertakes to make a public speech to
          enlist support for a lawful movement is quite
          incompatible with the requirements of the First
          Amendment.

323 U.S. at 540. The Court noted that when a speaker also engages in
conduct such as undertaking to collect funds or to secure subscrip-
tions, "he enters a realm where a reasonable registration or identifi-
cation requirement may be imposed." Id.        In Thomas v. Collins,
however. any solicitation by the speakeras    an inseparable incident




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Honorable Lloyd Criss - Page 3   (JM-732)




of the speech and therefore not punishable. The Court thus did not
decide whether section 5 of article 5154a could be constitutionally
applied to labor organizers soliciting union memberships outside the
context of a public speech. The Court expressly left open the
question of whether section 5 was consistent with the National Labor
Relations Act:

          Since a majority of the Court do not agree that
          section 5 or its present application conflicts
          with the National Labor Relations Act, OUT
          decision rests exclusively upon the grounds we
          have stated for finding that the statute as
          applied contravenes the Constitution.

Id. at 542.
-
     In a recent case, the United States Supreme Court has stated its
understanding of the First Amendment issue discussed in Thomas v.
Collins. In Village of Schaumburg v. Citizens for a Better Environ-
ment, 444 U.S. 620 (19801, the Court held unconstitutional on First
Amendment grounds a village ordinance prohibiting solicitations by
charitable organizations that did not use at least 75 percent of their
receipts for charitable purposes. The ordinance prohibited solicita-
tions by advocacy organizations which existed to disseminate informa-
tion and ideas, because over 25 percent of their receipts went to
salaries and administrative expenses. The ordinance was unconstitu-
tionally overbroad and substantially limited the protected speech
interests intertwined with solicitation of funds. The Court said of
Thomas v. Collins:

             Thomas v. Collins (citations omitted) held that
          the First Amendment barred enforcement of a state
          statute requiring a permit before soliciting
          membership     in   any     labor     organization.
          Solicitation and speech were deemed to be so
          intertwined that a prior permit could not be
          required.    The  court   also    recognized that
          'espousal of the cause of labor is entitled to no
          higher constitutional protection than the espousal
          of any other lawful cause.' (Citations omitted).
          The Court rejected the notion that First Amendment
          claims could be dismissed merely by urging 'that
          an organization for which the rights of free
          speech and free assembly are claimed is one
          'engaged in business activities' or that the
          individual who leads it in exercising these rights
          receives compensation for doing so.' (Citations
          omitted). Concededly, the 'collection of funds'
          might be subject to reasonable regulation, but the




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Honorable Lloyd Csiss - Page 4     (JM-732)




          Court ruled that such regulation 'must be done,
          and the restriction applied, in such a manner as
          not to intrude upon the rights of free speech and
          free assembly.' (Citations omitted).

444 U.S. at 631. Thus, the Court reiterated the view expressed in
Thomas v. Collins that the collection of funds might be subject to
reasonable regulation, if done in a way that does not intrude upon
First Amendment rights.

     Thomas v. Collins, as rendered by the Supreme Court in 1945 and
as cited in 1980, leaves open the question of whether article 5,
section 5154a, V.T.C.S., is facially constitutional. Two Texas
decisions have addressed the constitutionalitv of this orovision since
the Supreme Court held it unconstitutional as applied in Thomas. In
American Federation of Labor v. Mann, 188 S.W.2d 276 (Tex. Civ. App. -
Austin 1945, no writ), a labor union brought a declaratory judgment
action to test the constitutionality of article 5154a, V.T.C.S. The
court relied on the United States Supreme Court ruling in Thomas v.
Collins and the construction given section 5 by the Texas Supreme
Court in Ex parte Thomas to find section 5 valid as a registration
statute applicable to paid labor organizers who solicit members
through methods other than as part of a public speech to assembled
employees. 188 S.W.2d at 279. The court stated that the purpose of
the statute was to protect labor and the public against imposters.
Id.; see also Ex parte Thomas, D.

     In 1954, the Texas Court of Criminal Appeals upheld a conviction
for violation of section 5 of article 5154a. Coutlakis v. State, 268
S.W.2d 192 (Tex. Grim. App. 1954). The primary issue before the court
was whether the National Labor Relations Act (NLRA) preempted section
5, but the court also concluded that article 5154a and its application
to defendant did not deprive him of his First Amendment rights. In
answer to a challenge that the term "solicit" was not clearly defined
by statute the court stated:

          As here used, it means 'to entice, to request, to
          incite' and surely it does not contain the further
          proposition that it should be a successful
          solicitation evidenced by the passage of money
          from one person to another. (Emphasis added).

268 S.W.2d at 198. This language suggests that a solicitation
attempts to collect funds, conduct which the Supreme Court has said is
subject to reasonable regulation. Thomas v. Collins, 323 U.S. at
540-41; see also Village of Schaumburg v. Citizens for a Better
Environment, 444 U.S. at 632-33.




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Honorable Lloyd Criss - Page 5 (JM-7323




     The Supreme Court has not held section 5 of article 5154a,
V.T.C.S.. facially unconstitutional. Moreover, two Texas cases since
Thomas v. Collins have found the statute constitutional. The Texas
Court of Criminal Appeals has suggested an interpretation of the
provision that would render it constitutional. If the Texas Supreme
Court were faced directly with this question, it would have an
opportunity to give a construction to this statute which would render
it constitutional. Therefore, we cannot advise you that this
provision violates the First Amendment on its face.

     We will next consider whether section 5 of article 5154a,
V.T.C.S.. conflicts with the NLRA.      As already pointed out, the
opinion in Thomas v. Collins stated that a majority did not agree that
there was such a conflict. The defendant in Coutlakis v. State, 268
S.W.2d 192, argued that section 5 was repugnant to the NLRA, relying
on Hillv. State of Florida ex rel. Watson, 325 U.S. 538 (1945). This
case found a Florida statute on licensing of a union "business agent"
to be inconsistent with the NLRA. The majority of the Court of
Criminal   Appeals   in   Coutlakis   found    the   Florida   statute
distinauishable from the Texas statute and determined that neither
Elill,supra, nor Garner v. Teamsters, Chauffeurs and Helpers Local
xn    No. 776, 346 U.S. 485 (1953), required it to find section 5
inconsistent with the NLRA. A dissenting judge relied on Hill and
Garner to conclude that section 5 of article 5154a, V.T.Cx         was
preempted.

     Garner dealt with federal preemption of a grievance arising out
of peaceful picketing. The NLRA gave the National Labor Relations
Board jurisdiction so that the state court could not adjudge the
controversy. Hill v. State of Florida determined that the Florida
licensing statute was inconsistent with section 157 of chapter 7 of
the NLRA which provides as follows:

         Employees shall have the right to self-organiza-
         tion, to form, join, or assist labor organisa-
         tions. to bargain collectively through represen-
         tatives of their own choosing, and to engage in
         other concerted activities for the purpose
         of...    mutual aid or protection. . . .

29 U.S.C. 5157 (1982). The Florida statute governed the licensing of
union "business agents," defined to include labor organizers and
collective bargaining agents. Licenses were denied persons who had
not been United States citizens for over ten years, who had been
convicted of a felony, or who were not of good moral character. 325
U.S. at 540. The Court determined that this provision limited the
workers' freedom to choose collective bargaining representatives
guaranteed by chapter 7 of the NLRA. 29 U.S.C §157 (1982); see also
29 U.S.C. 9151 (1982). There was no discussion of the licensing




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Honorable Lloyd Criss - Page 6     (JM-732)




scheme as it affected solicitation of union memberships. The Court
also found that a requirement that the union file certain information
with the secretary of state was preempted. The requirement alone did
not conflict with the act, but the enforcement by injunction and
criminal penalty did conflict. The Court stated:

          It is the sanction here imposed, and not the duty
          to report, which brings about a situation incon-
          sistent with the federally protected process of
          collective bargaining.

325 U.S. at 543.

     The Supreme Court has recently overruled the Hill ruling that the
NLRA preempts state laws establishing qualifications for union
officials. In Brown v. Hotel 6 Restaurant Employees and Bartenders
Int'l Union Local 54. 468 U.S. 491 (1984), the Court determined that
chapter 7 of the NLRA did not preempt a New Jersey law establishing
qualifications for officials of unions representing casino industry
employees. Subsequent to the Hill v. State of Florida decision,
Congress enacted the Labor-Management Reporting and Disclosure Act of
1959. 29 U.S.C. SP401 et seq. (1982). The act expressly disclaims
congressional intent to preempt all state regulation of bargaining
representatives:

          Except as explicitly provided to the contrary,
          nothing in this chapter shall reduce or limit the
          responsibilities of any labor organization or any
          officer, agent, shop steward, or other repre-
          sentative of a labor organization, or of any trust
          in which a labor organization is interested, under
          any other Federal law or under the laws of any
          State, and. except as explicitly provided to the
          contrary, nothing in this chapter shall take away
          any right or bar any remedy to which members of a
          labor organization are entitled under such other
          Federal law or law of any State.         (Emphasis
          added).

29 U.S.C. 5523(a) (1982); see also 29 U.S.C. 6401. "Officer, agent,
shop steward, or other representative" includes organizers who
exercise substantial independent authority. Id. 5402(q). It is
possible that section 523(a) of the Labor-Management Reporting and
Disclosure Act of 1959 expressly disclaims intent to preempt section 5
of article 5154s. V.T.C.S., insofar as it applies to an organizer who
exercises substantial independent authority. Moreover, no court has
ever determined that section 5 was preempted in any degree by chapter
7 of the NLRA.      The United States Supreme Court acknowledged
uncertainty on this question. Thomas v. Collins, supta. The Texas




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Honorable Lloyd Criss - Page 7 (JM-73 2




Court of Criminal Appeals addressed this question in Coutlakis v.
State and found no preemption.       Moreover, the Labor-Management
Reporting and Disclosure Act of 1959 as interpreted by Brown v. Hotel
Employees, 8~pfa, has changed the law on preemption of state laws by
the NLRA.

     This office, in carrying out its duty to provide legal advice,
must rely on the decisions of the courts. See Travis County v.
Matthews, 235 S.W.2d 691 (Tex. Civ. App. - Austin 1950, writ ref'd
n.r.e.); Attorney General Opinion H-373 (1974). Article 5154a,
section 5. was found valid in Mann and Coutlakis, the most recent
judicial decisions on this question. Our research has not located any
judicial decision or statute which overrules these cases. Although we
might view your question differently in the absence of judicial
authorities, we are bound by ca e law and must advise you that section
5 of article 5154a. V.T.C.S., mlz
                                st still be considered valid.

                              SUMMARY

             Section 5 of article 5154a, V.T.C.S.. does not
          facially violate the First Amendment of the United
          States Constitution snd is not preempted by the
          National Labor Relations Act.

                                         Very truly yourA.
                                             I
                                               IA,
                                        &I!-\ h ah
                                                 MATTOX
                                         Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STBAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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