CWA v. Ector Cty Hosp Dist

402 F.3d 503

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 24, 2006
• Docket: 03-50230
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED OCTOBER 20, 2006 IN THE UNITED STATES COURT OF APPEALS October 5, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-50230

COMMUNICATIONS WORKERS OF AMERICA; URBANO HERRERA,

Plaintiffs-Appellees,

versus

ECTOR COUNTY HOSPITAL DISTRICT, doing business as Medical Center Hospital, ET AL,

Defendants,

ECTOR COUNTY HOSPITAL DISTRICT, doing business as Medical Center Hospital,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas

Before JONES, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, and OWEN, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Ector County Hospital District, a

political subdivision of the State of Texas which owns and operates the Medical Center Hospital in Odessa, Texas, appeals the district

court’s judgment in favor of plaintiffs-appellees Urbano Herrera,

an employee of the Hospital, and Communications Workers of America,

the union to which Herrera belongs. The district court ruled that

the Hospital violated the First Amendment rights of Herrera and the

union by disciplining Herrera for violating the Hospital’s uniform

non-adornment policy by refusing to remove the “Union Yes” button

worn on his uniform while at work at the Hospital on November 11,

1999. The district court issued a permanent injunction requiring

the Hospital “to allow all of the employees in its ‘Integrated

Services’ organization to wear pro-union buttons,” awarded the

plaintiffs some $91,000 attorney’s fees and awarded Herrera $548.85

damages.1 A divided panel of this court affirmed. Communications

Workers of America v. Ector County Hospital District, 392 F.3d 733

(5th Cir. 2004) (CWA III). We subsequently took the case en banc.

Communications Workers of America v. Ector County Hospital

District, 402 F.3d 503 (5th Cir. 2005). We now reverse, holding

1 Communications Workers of America v. Ector County Hospital District, 241 F. Supp. 2d 617, 638 (W.D. Tex. 2002) (CWA II). The court defined the Hospital’s “Integrated Services” organization as “including, but not limited to, Engineering, Housekeeping, Dietary, Laundry, Printing, Customer Support Services, Transport, Purchasing and Central Supply, and Distribution.” Id. at 634. The Engineering Department has some 40 employees and includes carpenters, plumbers, electricians, locksmiths, painters, and general maintenance. Herrera is and was a carpenter. See also Herrera v. Medical Center Hospital, 241 F. Supp. 2d 601 (E.D. La. 2002) (a different district judge, sitting by designation) (rulings on summary judgment motions) (CWA I).

2 that, under the balancing test of Pickering v. Board of Education,

88 S.Ct. 1731, 1734-35 (1968), the interest of the Hospital in

promoting the efficiency of the public service it performs by means

of its uniform non-adornment policy outweighs the interest of its

Integrated Services employees such as Herrera in wearing a “Union

Yes” button on their uniforms while on duty at the Hospital.

Facts and Proceedings Below

The district court partially granted the motion for summary

judgment of plaintiffs and ruled that Herrera’s wearing of the

“Union Yes” button on his uniform while at work constituted speech

on a matter of public concern, but further ruled that resolving the

appropriate Pickering balancing required an actual trial. CWA I.2

Subsequently, the case proceeded to trial before a jury in

October 2002, with the Hospital assigned the burden of proof on the

Pickering balance issue. At the conclusion of the Hospital’s

evidence, the district court granted the plaintiffs’ motion for

judgment as a matter of law, discharged the jury and entered the

above described judgment for plaintiffs. CWA II, 241 F. Supp. 2d

at 638. The court concluded that under the evidence “the Pickering

2 The court also ruled that the Union had standing to sue in its own right, but not as representative of any Hospital employee, and that the individual defendants – the supervisors who disciplined Herrera and the members of the district’s board of directors – were entitled to qualified immunity (a ruling which has not since been questioned). Id.

3 balancing test favors Plaintiffs.” Id. at 632. The panel majority

affirmed, reaching the same conclusion. CWA III, 392 F.3d at 742-

46.

The undisputed trial evidence reflects that the Medical Center

Hospital is a political subdivision of the State of Texas governed

by an uncompensated seven person board of directors elected from

single member districts and serving staggered two year terms.

Medical Center Hospital’s mission is “to provide high quality

health care to the residents of the Permian Basin, including Odessa

but also the outlying counties.” It is a “full service hospital,”

and, among other things, is the “lead facility for trauma cases” in

its area, provides “a full service operating room operating seven

days a week, generally twenty-four hours a day,” delivers

approximately 120 babies a month, has “an extensive cardiac

program,” and was “listed as one of the top 100 cardiovascular

hospitals in the country.” Indigent care is provided and patients

are not turned away “because they can’t pay or don’t have

insurance.” The Hospital has “slightly over 1500 employees.” It

has a single cafeteria (apparently located on the ground floor)

which is used by Hospital employees, patients and visitors for

meals, breaks and the like.

Under the Hospital’s established dress code policy, all

employees were and are required to wear a uniform while on duty.

The required uniform for carpenters (such as Herrera),

4 electricians, plumbers, and others in similar positions, consists

of a gray shirt and gray pants. The policy provides that “ONLY

pins representing the professional association and the most current

hospital service award may be worn.” It also provides that the

dress code will be enforced “uniformly throughout Medical Center

Hospital.” The trial evidence reflects that the same policies with

respect to dress code and the wearing of pins apply to carpenters

as apply to all other employees. The undisputed evidence at trial

also reflected the stated exception for pins representing

“professional association” does not refer to pins representing

membership in an organization but rather to those representing

professional credentials, as, for example, nurses who have received

a Bachelor’s degree in nursing, or a Master’s degree, “that

individual can wear the professional pin, a designation of those

credentials that person has earned.” The evidence also showed that

three other exceptions had been made to the anti-adornment policy.

There was testimony that, for more than fourteen years, during the

week (or on the day) before the annual football game between Odessa

High School and Permian High School the Hospital allows its

employees “to celebrate the school they support by wearing the

colors of their school.” The uncontradicted evidence was that this

was “to encourage a little esprit de corps and friendly

camaraderie” and had never resulted in any tension at the Hospital.

Exceptions were also made “twice a year” to accommodate two other

5 occasions. One is the “Great American Smoke Out” day, on which the

Hospital, which is a smoke-free facility, sets up a booth which

passes out pins, “monikers” and gum to people to get them not to

smoke that day. The second exception is that the Hospital, where

“blood shortages” are a “very difficult problem,” has blood drives

and donors are given and may wear “a little pin saying I’m a

donor.” The uncontradicted evidence is that these pins cause no

disruption but “only build esprit de corps and build morale.”

The trial evidence reflects the following respecting the

incident giving rise to this suit. On November 11, 1999, Hospital

employee Herrera, a carpenter, wore a “Union Yes” button on his

uniform while at work at the Hospital renovating a vacant patient

room, adjacent to occupied patient rooms, on the seventh floor, the

labor and delivery floor, of the Hospital.3 As Herrera was waiting

for the elevator to go to the cafeteria for his morning break, he

came into contact with Tim Daniels, the Hospital general

maintenance supervisor, who told him to remove the “Union Yes”

button as it was not allowed by the Hospital’s dress code. Herrera

refused to remove the button and told Daniels to “show me the

3 Herrera had joined the Union some time in the summer of 1999. At a Union evening meeting the local union president (who was not a Hospital employee) had passed out buttons to all members in attendance, not simply members who were Hospital employees, and Herrera received his button at that meeting. The president told them to wear the button at work. Herrera’s good friend Medrano, then a plumber employed by the Hospital who had joined the Union about when Herrera did, was also present at that meeting and likewise received a “Union Yes” button there.

6 policy.” Daniels did not have the policy with him. Herrera

proceeded to the cafeteria where he joined his good friend Medrano,

a plumber employed by the Hospital and likewise a Union member who

also had worn a “Union Yes” button to work that day.4 Shortly

after 9:30 a.m. Daniels and John Durham, the Hospital’s Technical

Services Director, and supervisor over both Daniels and Herrera,

came into the cafeteria, and, as reflected by the undisputed

testimony of Herrera, Medrano and Durham, Durham explained the non-

adornment policy to Herrera and asked him to remove the “Union Yes”

button and Herrera declined. On being asked again, Herrera replied

“I’m not going to take it off. If you want it off, then you take

it off.” Durham then replied “Let’s go to my office.” At that

point Herrera pushed back from the table, stood up, thrust his

fist in the air and yelled “Union up.” Herrera testified that he

“yelled it pretty loud,” and that there then were at least twenty

people in the cafeteria, including patients, visitors and other

employees.5 Medrano did not yell anything. Herrera accompanied

Durham to his office where Durham showed him a copy of the dress

code policy. Herrera saw its non-adornment provision, took the

4 See note 3 supra. About 7:30 that morning Medrano’s supervisor, Leslie Bee, had asked him to take off the “Union Yes” button and Medrano had complied. 5 Durham testified Herrera “got upset,” “very disrespectful and almost to the point of being hostile.” Medrano, who testified he was such good friends with Herrera he would consider him like a brother, indicated that Herrera seemed angry, but on cross- examination by his attorney said Daniels and Durham seemed angry before, and more angry than, Herrera did.

7 “Union Yes” button off and gave it to Durham who gave it back to

Herrera telling him to go back to work and not wear it again, to

which Herrera agreed. No discipline or punishment was imposed.

Herrera then returned to the patient room he had been working on

and, using the telephone there, called the Union president and told

him what had happened. The president told him to put the button

back on, which Herrera did and went back to work in the area

wearing it, though he knew that to be in violation of the dress

code policy and Durham’s instructions. Not long thereafter, Durham

came by and saw Herrera in the seventh floor hallway, where he was

working, and asked him to remove the button, but Herrera refused.6

Durham told him to come to his office after lunch. Herrera did so

after calling the Union president, who (along with somebody else

from the Union) accompanied him to Durham’s office. Durham

proceeded to suspend Herrera without pay for three days.7 No

discipline was imposed on Medrano.

The uncontradicted trial evidence reflects that the only

“Union Yes” buttons worn by any employee at the Hospital were those

6 While that transpired the other workers in the area stopped what they were doing and watched. 7 The three days lost wages totaled $292.32. The next month when raises were fixed for 2000, Herrera, because of what transpired in respect to his wearing the “Union Yes” button, received only a 3% raise over his 1999 compensation, rather than the usual 4%. That one percentage point differential amounted to $256.53.

8 worn on November 11, 1999, by Herrera and Medrano.8 And, there was

no evidence that any other buttons or items contrary to the terms

of the non-adornment policy – apart from the above noted once a

year exceptions for high school football team insignia, Great

American Smoke Out and blood donors – were ever worn by Hospital

employees while on duty. The Hospital would not allow, for

example, employees to wear on their uniforms at work “Union No”

buttons, or Republican buttons or Democrat buttons or buttons

endorsing a person running for election to the Hospital’s board of

directors.9 There was neither any evidence nor any determination

that the uniform non-adornment policy was motivated by any anti-

union animus or was discriminatorily enforced. Herrera, who

continued to be employed at the Hospital, testified at the October

2002 trial that “for about three years now” he had been trying to

organize a Union in the Hospital by talking to people there during

his work day, that he was doing that now, just like he always had,

and that the Hospital had never stopped him from doing so. He

8 Medrano testified that other than Herrera and himself he had never seen any employee wear a Union button at the Hospital, that in the months preceding November 11, 1999 he would see Herrera several times a day every day at work and never saw him wearing a Union button on his uniform before November 11, 1999, and that November 11, 1999, was the first (and only) time Medrano wore a Union button at work. None of the testimony of Herrera or the local Union president, or any other witness, was to the contrary. David Meisell, the Hospital’s Executive Director of Human Resources, testified without objection that “[t]he ‘Union Yes’ button was only worn on November the 11th.” 9 In May 2000 the local Union president ran unsuccessfully for a position on the Hospital’s board of directors.

9 also testified that he did not believe that Durham had singled him

out at any time because of his Union involvement. The local Union

president testified he knew of no instance when the Hospital

prevented an employee from joining the Union. Executive Director

of Human Resources Meisell testified that the Hospital’s records do

not reflect whether an employee is or is not a Union member and

that Meisell was neutral as to employee Union membership, neither

encouraging nor discouraging it.10

Durham, whose department had ultimate supervision over

plumbers, electricians, painters, carpenters, general maintenance

staff and plant staff, testified that all these employees have

“some contact with the public,” and that, among other things,

plumbers and electricians worked in patient occupied rooms when a

10 Meisell recognized that Texas law prohibited the Hospital from recognizing the Union or collectively bargaining with it. See Tex. Gov. Code § 617.002, providing that a political subdivision “(a) . . . may not enter into a collective bargaining contract with a labor organization regarding wages, hours, or conditions of employment of public employees” and “(c) . . . may not recognize a labor organization as the bargaining agent for a group of public employees.” See also id. § 617.003(a) (“Public employees may not strike or engage in an organized work stoppage . . .”); § 617.004 (public employment may not be denied because of “membership or nonmembership in a labor organization”). Under § 617.005 the foregoing provisions do not impair the right of public employees to present work related grievances “either individually or through a representative that does not claim the right to strike”; however, that provision merely gives an individual employee the right to be represented at a grievance by anyone he chooses, it neither gives any preference to any union (whether or not the employee is a member thereof) nor authorizes the political subdivision to enter into any contract with a union. Moreau v. Klevenhagen, 956 F.2d 516, 520 (5th Cir. 1992), aff’d, 113 S.Ct. 1905, 1909 n.10 (1993).

10 plumbing or electrical problem is reported there. He testified

that carpenters work “throughout the facility,” “working right

adjacent to patients that are right next door” as was the case with

the work Herrera was doing November 11, 1999, on the seventh floor.

Meisell testified that expectant patients frequently walked up and

down the hall on the seventh floor “trying to encourage” labor and

that “[y]ou also have a tremendous number of visitors” on that

floor. Durham also explained that the dress code policy “provides

a consistent standard for all the employees to provide neat and

professional appearance for patients and staff.” Herrera testified

that he normally took both his breaks and his lunch in the

cafeteria, that he worked “all around the hospital,” “in the

patient areas most of the time” where “there are usually patients

in the rooms next to where” he was working, and where he, patients

and visitors would be walking up and down the hallway. Medrano

testified that in the course of his plumbing work at the Hospital

he was in front of patients and the public “quite often,” that when

he went to work in a patient’s room “the patient is in the room”

(although “sometimes” that was not the case).11

Meisell, the Hospital’s Executive Director of Human Resources,

testified that all of the Hospital’s employees are advised as to

11 It was also undisputed that carpenters and plumbers (including Herrera and Medrano), and presumably similar employees, would from time to time in the course of their work leave the Hospital premises (in uniform) to purchase (at Hospital expense) items needed in their work from various local third party suppliers (for example, a lumber yard).

11 their contact with the public because “it’s so important that the

hospital maintain a human face to our patients.” He stated that

“[a]ll our employees are public employees” and are “expected to

have positive contact with the public.” He noted that for over ten

years the Hospital has

“had a program called Many Caring Hands where we teach our employees to go the extra mile. When a visitor is in the facility and needs some help finding the staff lab, to go in and get some blood work, they may not be able to find it. Even though it’s not a carpenter’s job necessarily to show people directions, it would be absolutely an expectation that the first person – the first employee that that person encounters helps that person to find the stat [sic] lab or radiology or whatever the case may be.”

Meisell, as did Durham, expressed the view that allowing on-

duty employees to wear “Union Yes” buttons on their uniforms would

give rise to “disruption” that “would be constant and ongoing,”

stating

“If some employees got to wear a “Union Yes” button and other employees wouldn’t get to wear “Union No” buttons and there’s the seed of conflict, dispute, disruption, we – that’s not the kind of thing we need to be played out inside the halls of the hospital where we have patients dealing with life threatening conditions.”12

12 Both Meisell and Durham testified they were aware of “tension” among employees – including those under Durham and others, including housekeeping, dietary and business office employees – respecting union membership which tended to divide employees into two groups and split some friendships (including one of Herrera’s). Meisell testified that he had heard arguments among housekeeping employees and seen “people cry . . . being fearful over being caught between these issues.” A housekeeping employee told Meisell she was scared she would be asked to join the Union; Meisell (without asking who solicited her) told her it was entirely up to her, as he also said to a business office employee who told him he felt uncomfortable about being solicited to join the Union.

12 He went on to explain:

“The union pins then identify those who are part of the union and we would then give the right to those who want to protest the union to wear an anti-union pin and therein lies the seat of that conflict and disruption that we try to avoid in the hospital setting. . . . If the employees are allowed though [sic; to] wear the union pin, then we have to allow other employees to wear a non- union pin. If these kinds of political issues are aired out in the halls of our hospital, then we have other political issues. A terrible kind of an argument would be to have a pro abortion, anti-abortion issue be argued in the midst of our hospital. That’s not the setting to have – we’re trying to provide health care, not to have a dispute over politics. We don’t need to have the democrats and the republicans arguing in the halls of our hospital as we’re trying to provide care to the people who are needing our life-saving services.”

Discussion

General Standards

With respect to restricting the speech of its employees “the

government as employer indeed has far broader powers than does the

government as sovereign,” Waters v. Churchill, 114 S.Ct. 1878, 1886

(1994); Garcetti v. Ceballos, 126 S.Ct. 1951, 1958 (2006), so that

“many of the most fundamental maxims of our First Amendment

jurisprudence cannot reasonably be applied to speech by government

employees” and “[e]ven something as close to the core of the First

Amendment as participation in political campaigns may be prohibited

to government employees.” Waters at 1886 (citing Broadrick v.

There was no evidence of any actual physical altercation at the Hospital respecting Union membership nor (except for the above recited events of November 11, 1999) of any clear threat of such.

13 Oklahoma, 93 S.Ct. 2908 (1973) and Civil Service Comm’n v. Letter

Carriers, 93 S.Ct. 2880 (1973)).13 By the same token, Supreme Court

decisions “have given substantial weight to government employers’

reasonable predictions of disruption, even when the speech involved

is on a matter of public concern, and even though when the

government is acting as sovereign our review of legislative

predictions of harm is considerably less deferential.” Waters at

1887 (citing, inter alia, Connick v. Myers, 103 S.Ct. 1684 (1983),

and Letter Carriers). See also Boards of County Comm’rs v. Umbehr,

116 S.Ct. 2342, 2348 (1996) (“We have . . . ‘consistently given

greater deference to government predictions of harm used to justify

restriction of employee speech than to predictions of harm used to

justify restrictions on the speech of the public at large.’”)

(quoting Waters at 1887).

On the other hand, the Supreme “Court has made clear that

public employees do not surrender all their First Amendment rights

by reason of their employment. Rather, the First Amendment

protects a public employee’s right, in certain circumstances, to

speak as a citizen addressing matters of public concern.”

13 See also Kelley v. Johnson, 96 S.Ct. 1440, 1445 (1976) (“[W]e have sustained comprehensive and substantial restrictions upon activities of both federal and state employees lying at the core of the First Amendment,” citing Letter Carriers and Broadrick); Wachsman v. City of Dallas, 704 F.2d 160 (5th Cir. 1983) (local employees, non-partisan candidate elections); Burrus v. Vegliante, 336 F.3d 82, 86, 89 (2d Cir. 2003) (1993 Hatch Act amendments).

14 Garcetti, 126 S.Ct. at 1957. As the Court went on to explain in

Garcetti:

“Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. [citation] If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. [citation] If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. [citation] This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.” Garcetti, 126 S.Ct. at 1958.

See also Connick, 103 S.Ct. at 1687 (quoting Pickering, 88 S.Ct. at

1734, as to seeking “‘a balance between the interests of the

[employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in promoting

the efficiency of the public services it performs through its

employees.’”).

The Balancing Process

When a governmental employer disciplines an employee for

speaking “as a citizen addressing a matter of public concern, the

First Amendment requires a delicate balancing of the competing

interests surrounding the speech and its consequences.” Garcetti

at 1961. In that situation, as Connick explains,

15 “. . . the state’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression. Although such particularized balancing is difficult, the courts must reach the most appropriate possible balance of the competing interests.” Id. at 1692.

. . .

“We caution that a stronger showing [by the governmental employer] may be necessary if the employee’s speech more substantially involved matters of public concern.” Id. at 1692-93.

Moreover, the governmental employer’s burden in the balancing

process is reduced not only by the extent to which the employee’s

speech is less than substantially on a matter of public concern but

also by the extent to which the employer’s challenged speech

restriction is limited or minimal. Thus, in Department of Justice

v. FLRA, 955 F.2d 998 (5th Cir. 1992) (“FLRA”), in holding that the

Immigration and Naturalization Service’s uniform anti-adornment

policy validly precluded border patrol agents from wearing union

buttons on their uniforms at work, we assumed, without deciding,

that wearing the buttons constituted speech on a matter of public

concern. Id. at 1006. We applied Pickering balancing, stating

“‘[T]he State’s burden in justifying a particular [action or policy] varies depending upon the nature of the employee’s expression.’ Connick [v. Meyers], 461 U.S. [138] at 150, 103 S.Ct. at 1692 [(1983)]. ‘The more central a matter of public concern the speech [or association] at issue, the stronger the employer’s showing of counter-balancing governmental interest must be.’ Coughlin [v. Lee], 946 F.2d [1152] at 1157 [5th Cir. 1991].” Id. at 1006.

In applying the balancing we specifically relied, inter alia, on

16 the fact the uniform anti-adornment policy’s preclusion of wearing

Union buttons on agent uniforms at work:

“. . . results in only a minimal intrusion of the free speech rights of union employees. They can continue to express their support for the Union in myriad other ways that are absolutely unaffected by our decision today. Consequently, the INS anti-adornment policy does not violate the agents’ First Amendment rights.” Id. at 1007.

Thus, in FLRA we upheld application of the anti-adornment

policy to preclude wearing union pins at work even though “the INS

has not demonstrated with anecdotal evidence” that “deleterious

effects will in fact occur if agents are allowed to wear the pins,”

stating that under Connick “it is not necessary ‘for an employer to

allow events to unfold to the extent that the disruption . . . is

manifest before taking action.’” FLRA at 1007 (quoting Connick, 103

S.Ct. at 1692).

Matter of Public Concern

With respect to whether an employee’s speech addresses a

matter of public concern we consider the speech for which the

employee was disciplined – here, wearing a “Union Yes” button on

the employee’s uniform while at work at the Hospital – not some

other speech. Waters, 114 S.Ct. at 1891. “Whether an employee’s

speech addresses a matter of public concern must be determined by

the content, form, and context of a given statement.” Connick, 103

S.Ct. at 1690. And, we have stated that a communication “rises to

17 the level of public concern if a person speaks primarily as a

citizen rather than as an employee.” Dorsett v. Bd. of Trustees

State Colleges & Universities, 940 F.2d 121, 124 (5th Cir. 1991)

(emphasis added).

As we did in FLRA, we make the not illogical assumption that

Herrera’s and Medrano’s wearing of the “Union Yes” button on their

uniforms while at work at the Hospital constituted speech on a

matter of public concern. However, we conclude that that speech

touched upon or involved matters of public concern only

insubstantially and in a weak and attenuated sense. Several

considerations taken together lead us to this conclusion.

To begin with, it cannot reasonably be said that a Hospital

employee’s wearing the “Union Yes” button on his uniform while at

work communicates anything more than the implicit assertion that

the employee is a union member and believes working conditions

and/or compensation would be better for him, and perhaps for most

fellow employees, if more Hospital employees were union members.

However, a governmental employee’s expression of general

dissatisfaction with his working conditions does not normally

constitute a matter of public concern. We do not “presume that all

matters which transpire within a government office are of public

concern” and “the First Amendment does not require a public office

to be run as a roundtable for employee complaints over internal

office affairs.” Connick, 103 S.Ct. at 1691.

18 We recognize that in other contexts governmental employee

buttons supporting union membership may more substantially speak to

matters of public concern. For example, under the Federal Service

Labor-Management Relations Statute (FSLMRS), 5 U.S.C. § 7101-7135,

which was applicable in our above cited decision in FLRA, unions

which have won an election supervised by the Federal Labor

Relations Authority are certified as the exclusive bargaining agent

of all the employees in the unit, and the agency is under the legal

duty to bargain collectively with the union (subject to certain

reserved management rights). See, e.g., 5 U.S.C. §§ 7111, 7114,

7116. Cf. Scott v. Meyers, 191 F.3d 82 (2d Cir. 1999) (indicating

that under state law collective bargaining contract between union

and local governmental entity employer subject to approval by

employee vote). However, under Texas law political subdivisions

may not contract with unions respecting employee wages, hours or

conditions of employment nor may they “recognize” a union as

bargaining agent for employees, and there are no union “elections”

among such employees. See note 10, supra. Thus, the union buttons

here were clearly less substantially speech on a matter of public

concern than were the union buttons before us in FLRA.

We also observe that the speech at issue here does not in any

way imply that the Hospital was guilty of any wrongdoing or breach

19 of trust or the like.14

Finally, the form and context of the speech here lack those

characteristics which clearly point in the direction of classifying

the speech as being on a matter of public concern. This speech is

not made in any kind of traditional public forum such as, for

example, the teacher’s letter to the newspaper criticizing the

school board’s finance proposals involved in Pickering, or the

teacher’s legislative testimony supporting a position opposed by

his college’s governing board involved in Perry v. Sindermann, 92

S.Ct. 2694, 2696 (1972), or even wearing the button at a meeting of

the Hospital’s board (or at any other kind of a public meeting held

for the purpose of communicating views). Nor was the “speech” here

equivalent to a comment, made in private conversation between two

friends, explicitly expressing a particular opinion on a specific

matter of undisputed public concern, such was involved in Rankin v.

McPherson, 107 S.Ct. 2891 (1987). On the contrary, to the extent

that the wearing of the button violated the uniform anti-adornment

policy, the wearing of the button – the speech here – occurred only

while the employee was on duty and “on the clock” at the Hospital

and in its uniform. In Connick the Court observed that the

employee circulated the offending document at work and noted that

14 See, e.g., Connick, 103 S.Ct. at 1690-91, where, in holding that most of the employee speech at issue was not on a matter of public concern, the Court noted that it did not “seek to bring to light actual or potential wrongdoing or breach of public trust . . .”.

20 “Employee speech which transpires entirely on the employee’s own

time, and in nonwork areas of the office, bring different factors

into the Pickering calculus, and might lead to a different

conclusion.” Connick, 103 S.Ct. at 1693 n.13. Indeed, to the

extent that the “speech” at issue here communicated anything to

anybody it did so only as an incident to the button wearer’s on the

clock performance of his duties as a Hospital employee in the

Hospital’s uniform. That would facially appear to be some

reasonable justification for the governmental employer to treat

such employee speech “differently from” speech by “any other member

of the general public.” Garcetti, 126 S.Ct. at 1958. While this

is not the same case as Garcetti, some of the observations there

likewise clearly have relevance, though perhaps not determinative

significance, here, viz:

“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.

When he went to work and performed the tasks he was paid to perform, [plaintiff] Ceballos acted as a government employee. . . .” (126 S.Ct. at 1960).

“Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper, see Pickering, 391 U.S. 563, 88 S.Ct. 1731, or discussing politics with a co-worker,

21 see Rankin, 483 U.S. 378, 107 S.Ct. 2891.” (126 S.Ct. at 1961).15

Employer Interest

We think it evident that the Hospital has a significant

interest in having a uniform non-adornment policy applicable to its

employees, including those in its Integrated Services organization,

such as carpenters, plumbers, electricians, housekeeping and

general maintenance.

That uniforms may be more important in law enforcement than in

other fields clearly does not mean that other employers have no

interest in requiring them. We agree with the Ninth Circuit’s

observation in INS v. Fed. Labor Relations Auth., 855 F.2d 1454

(9th Cir. 1988), that a “uniform requirement fosters discipline,

promotes uniformity, encourages esprit de corps, and increases

readiness” and having “standardized uniforms encourages the

subordination of personal preferences and identities in favor of

the overall group mission.” Id. at 1464 (citations and internal

quotations omitted). There is no reason to believe that a uniform

requirement will not have somewhat similar efficiency enhancing

15 See also United States v. National Treasury Employees Union, 115 S.Ct. 1003, 1013 (1995), where the Court held that certain speeches and articles, by non-senior level government employees, unrelated to the employee’s duties or status, constituted “citizen comment on matters of public concern” because they “were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to their government employment.” Here the last two “public concern” factors are essentially wholly absent and the first is largely so.

22 effects in the non-law enforcement context, as is clearly attested

by the presence of uniforms in so many non-law enforcement

occupations, e.g., postal employees, bus drivers, flight

attendants, United Parcel Service personnel and a host of others.

Uniforms also serve to provide a neat and professional appearance

to members of the public served by the employer, here Hospital

patients and visitors, and to allow patients and visitors to

identify the employees as being such. Obviously, when a Hospital

plumber, electrician, or housekeeper comes into a patient occupied

room, or when a Hospital carpenter is observed by a patient or

visitor in the hall, it is also highly desirable that the employee

be easily identifiable as such by, as well as present an

appropriate appearance to, that patient or visitor.

Moreover, we agree with INS v. Fed. Labor Relations Auth.

supra, that “[t]o allow employees to adorn their uniforms with

objects of their own choosing undermines the very purposes that

uniforms serve.” Id. at 1464. If each employee “uniform” were to

be festooned with whatever button or buttons the wearing employee

desired, it would obviously no longer be a “uniform” in any

meaningful sense.16

While this, again, is doubtless of most importance in a law

16 We recognize that the district court’s judgment only required the Hospital to allow the wearing of “pro-union buttons”. While this presents problems of its own, as explained below, we note here that no limit is stated on the number or size of the buttons which the judgment requires the Hospital to allow.

23 enforcement context, there is no reason to believe it is not of

real significance in most of the many non-law enforcement contexts,

both governmental and civilian, where uniforms are appropriately

required. As stated in INS v. Fed. Labor Relations Auth. supra,

“. . . the management interest in requiring unadorned uniforms has been recognized in private sector cases as well. The Sixth Circuit has recognized that concerns over discipline and presenting a clean professional image justified a private employer in prohibiting its restaurant employees from wearing unauthorized union buttons on their official uniforms. Burger King v. NLRB, 725 F.2d 1053, 1055 (6th Cir. 1984). Similarly, in Harrah’s Club, we recognized that a private employer was justified in prohibiting its casino employees from wearing unauthorized union buttons on their official uniforms. See [NLRB v.] Harrah’s Club, 337 F.2d [177] at 178-79 [(9th Cir. 1964)].” Id. at 1465.

In FLRA we held that it was not unreasonable for the INS, in

the absence of specific anecdotal evidence, to nevertheless assume

there was a degree of schism between union and nonunion agents,

that allowing that “to manifest itself in the form of a pin on the

uniforms of the pro-union agents will create added tension,” and

that “there will be occasions when a union button can be

interpreted as a symbol of defiance against supervisors and as a

split in solidarity among union and non-union agents, which will

have an impact on mission, discipline and esprit de corps.” Id.,

955 F.2d at 1007. There is no good reason to believe that these

observations are not also essentially applicable here. Indeed, the

evidence here showed that there was some workplace tension among

Hospital employees as to union membership, that for some at least

24 it was an emotional subject, and that the tension likely would be

exacerbated by employees wearing “Union Yes” buttons on their

uniforms at work. And this would be the case to an even greater

extent were the Hospital to also allow – as indeed it would plainly

have to – the similar wearing of “Union No” buttons.

But the concerns are not limited to “Union Yes” or “Union No”

buttons. Speech on labor related issues may not be privileged over

speech on other issues of public concern, Police Dep’t of City of

Chicago v. Mosley, 92 S.Ct. 2286 (1972), for to do so would

“undercut the ‘profound national commitment to the principle that

debate on public issues should be uninhibited, robust, and wide-

open.’” Id. at 2290 (emphasis added) (quoting N.Y. Times Co. v.

Sullivan, 84 S.Ct. 710, 721 (1964)); Carey v. Brown, 100 S.Ct.

2286, 2291 (1980). If “Union Yes” – and/or “Union No” – buttons

are allowed, so must employees be allowed to wear on their uniforms

at work buttons addressing other topics of equal or greater public

concern, such as, for example, “Abortion is Murder,” “No Gay

Marriage,” “Deport Illegals Now” and the like. Common sense tells

us, and the testimony confirms, that this would plainly be

deleterious to the Hospital’s mission.17 As the Court observed in

Carey, the Constitution does not leave governmental units powerless

17 At the very least, in its capacity as employer, the Hospital must have the power to avoid such First Amendment hostile, and essentially impractical, picking and choosing among matters of public concern in respect to its uniform anti-adornment policy applicable only to employees while on duty.

25 to protect the public from that which “‘disturbs the tranquility of

. . . buildings that require peace and quiet to carry out their

functions, such as courts, libraries, schools and hospitals.’” Id.,

100 S.Ct. at 2295 (quoting with approval from Justice Black’s

concurrence in Gregory v. Chicago, 89 S.Ct. 946, 950 (1969)).

Moreover, the Hospital’s patients – and their families – are in the

nature of a captive, and essentially involuntary, audience with

respect to whatever message is conveyed by buttons on the uniforms

of on-duty Hospital employees. It is reasonable for the Hospital

to conclude that its service to patients and their families is

enhanced by their not being involuntarily subjected to having

messages on matters of public concern indiscriminately conveyed to

them on the uniforms worn by on duty Hospital employees.

Conclusion

The Hospital’s anti-adornment policy, so far as it touches

matters of public concern, is wholly content and viewpoint neutral.

Indeed in any realistic, practical sense it is simply neutral.18

18 The policy’s stated exceptions for pins representing professional degrees or credentials (e.g., BS degree in nursing) and years of service are not matters of public concern and are typical of items often considered as part of, not something extraneous to, a uniform. The twice a year exceptions for the Great American Smoke Out day and Hospital blood donors, each closely related to the Hospital’s mission, are similarly not matters of public concern. Once a year pins for the local high school football game likewise pertained to no matter of public concern. Courts routinely disregard such trivial exceptions to uniform anti-adornment policies. See, e.g., INS v. Federal Labor Relations Auth., 855 F.2d at 1465; Burger King v. NLRB, 725 F.2d 1053, 1055 (6th Cir. 1984). The undisputed evidence is that these

26 Moreover, there is no evidence that the policy was adopted or

maintained out of any anti-union animus or was enforced other than

fairly and neutrally. And, the policy concerns only what employees

may wear on their work uniform while at work, and hence regulates

them only in their capacity as employees, not in their capacity as

private citizens. No decision of the Supreme Court or of this

court has ever invalidated such a uniform anti-adornment policy.

The basic thrust of the Supreme Court’s Pickering line of cases has

been “to ensure that public employers do not use authority over

employees to silence discourse . . . simply because superiors

disagree with the content of employees’ speech.” Rankin, 107 S.Ct.

at 2897 (emphasis added). Obviously, in Rankin the employee, fired

for saying “if they go for him again, I hope they get him”

concerning the shooting of the President, would not have been fired

had she said “I hope he quickly recovers.” The firing was because

of disagreement with the viewpoint expressed. That was likewise so

in all the Supreme Court’s Pickering line of cases striking down

employer discipline for employee on the job or job related

minor exceptions raised none of the concerns which would be raised by buttons addressing matters of public concern. Cf. Hill v. Colorado, 120 S.Ct. 2480, 2493, 2502 (2000) (statute that “does not distinguish among speech instances that are similarly likely to raise the legitimate concerns to which it responds” is content neutral and valid time, place, and manner restriction, notwithstanding covering “‘protest, education, or counseling’” speech but not inquiries about the time of day or bus schedules).

27 expressions.19 A strong argument can be made that governmental

employer genuine and essentially neutral uniform anti-adornment

policies, administered without discrimination, applicable only to

employees while on duty, will of themselves almost always pass

Pickering balancing, as they concern what is essentially a part of

the employees’ normal job performance for the employer and at the

same time result in only the most minimal intrusion into employee

free speech rights, leaving full scope for employee expression on

any subject. Nevertheless, to decide the present case we need not,

and do not, resolve the ultimate, across-the-board, merits of such

a general argument. Among other things, it is, perhaps, possible

that there are public employers for whom a uniform, or an anti-

adornment, policy does not conceivably subserve any legitimate

19 See, e.g., Pickering, 88 S.Ct. 1731, 1732-33 (1988) (teacher’s letter to newspaper criticizing Board of Education’s school finance proposal); Perry, 92 S.Ct. 2694, 2696 (1972) (college teacher’s legislative testimony supporting position opposed by college’s board of regents); Mt. Healthy City School District v. Doyle, 97 S.Ct. 568, 573 (1977) (teacher’s telephone call to radio station conveying substance of memorandum relating to teachers’ dress and appearance and “his criticism”); Givhan v. Western Line Consolidated School Dist., 99 S.Ct. 693, 695 (1979) (teacher’s criticism to principal of school district’s racially discriminatory policies and practices); Connick, 103 S.Ct 1684, 1693 (1983) (assistant district attorney’s questionnaire circulated in office which impliedly criticized district attorney and supervisors); Waters, 114 S.Ct. 1878, 1884 (1994) (nurse’s criticism of employer hospital’s violation of state nursing regulations and the quality of nursing care provided patients). Where, however, the employer restrictions apply to expression which neither takes place on the job nor is in any way job related, then the neutrality of the regulation does not suffice to sustain it. National Treasury Employees Union, 115 S.Ct. 1003 (1995).

28 employer purpose. Here, however, we hold that as a matter of law

the Pickering balance favors the Hospital, which may legitimately

conclude that its uniform non-adornment policy furthers its mission

by neutrally fostering a tranquil and peaceful, as well as a neat,

clean and care focused, atmosphere for its patients and visitors.20

Having concluded that as a matter of law the Pickering balance

weighs in favor of the Hospital, we reverse the judgment below and

remand the case with directions to enter judgment in favor of the

Hospital.

REVERSED and REMANDED with directions

20 On the other side of the ledger, under the policy the employees here remained fully free to otherwise meaningfully express whatever message wearing particular buttons at work would convey. And, as to the “Union Yes” buttons here, they do not strongly involve a matter of public concern, particularly given the very limited role of unions in relation to Texas governmental employers and employees (see note 10 supra).

29 WIENER, Circuit Judge, dissenting, joined by DeMOSS, STEWART, and

DENNIS, Circuit Judges.

Despite the utmost esteem in which I hold my colleagues of the

en banc majority, I am constrained to dissent. In my view, the

majority:

(1) Understates how substantially Herrera’s speech in this case involves matters of public concern;

(2) Overstates the significance of the anti-adornment facet of the employer’s uniform policy in advancing the Hospital’s interest in workplace efficiency;

(3) Ignores some factors pertinent to Herrera’s individual speech interest, and undervalues others, when conducting the Connick/Pickering balancing test;

(4) Inadequately distinguishes the facts and circumstances peculiar to this civilian employer/ maintenance-crew employee case from those of the cases proffered as analogs by the majority, involving (a) law enforcement and paramilitary employees, and (b) other sensitive- or confidential-relationship employers;

(5) Fails to parse the Hospital’s total employee pool and focus only on the sub-group of non-healthcare, blue- collar custodial, maintenance, food preparation, and clerical workers for the purpose of weighing the competing interests of free speech and workplace efficiency;

(6) Obverts the effect Texas’s prohibition of a public employer’s recognition of a union and bargaining collectively with it;

(7) For good measure, tosses out a parade of horribles that it speculates would result from a holding in favor of Herrera.

Mindful of the imperative to “keep one’s eyes upon the

doughnut and not upon the hole,” I caution all to remain constantly

aware that it is not the Hospital’s uniform policy vel non that

Herrera violated; he wore the prescribed uniform at all times. Rather, it is the Hospital’s additional prohibition of the wearing

of any adornment on those mandatory uniforms —— as that restriction

is applied to Herrera and his fellow custodial and clerical co-

workers —— that infringes his First Amendment right to freedom of

expression.

1.

Herrera’s Speech and “Matters of Public Concern”

As the majority ultimately acknowledges that Herrera’s

expression did indeed address a matter of public concern, I need

not comment on each incremental step taken (or not taken) to reach

this unavoidable conclusion. I am compelled, however, to flag the

majority’s “damning with faint praise” the degree of public concern

that Herrera’s workplace speech exhibited.

a. Public Concern or Personal Interest?

First, the majority advances that, because Herrera’s speech

occurred in the workplace and was at least implicitly related to

his employment, it primarily concerned matters of his own “personal

interest.” I must take issue with this bit of overbroad mis-

direction: We have expressly held that speech may warrant

protection, even if it occurs only in the workplace.1 And, it is

1 See Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001) (noting generally that “[n]either the [First] Amendment itself nor our decisions indicate that . . . freedom [of speech] is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.”) (citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979)).

31 a given that at least a modicum of personal interest will inhere in

virtually all employee speech, regardless of whether uttered while

the speaker is on or off the clock. Herrera concededly had some

individual interest in supporting the union organizing drive when

he wore the “Union Yes!” button on his uniform. But —— at least on

this record —— he cannot be held to have had any more of a personal

stake in the organizing effort than any other similarly situated

employee of the Hospital. That he was one of the organizers makes

no difference.

In holding that Herrera’s personal interest predominated over

the public concern that he addressed, the majority focuses too

narrowly on what it perceives to be the motivation for his speech,

ignoring his obvious and overarching institutional interest in the

hoped-for result of the union organizing effort at this public

facility. Such public concern, either pro or con, was shared, I

venture, to a greater or lesser degree, by (1) the subset of all of

the Hospital’s non-healthcare, custodial and clerical workers, (2)

the Hospital’s entire workforce, (3) the healthcare establishment

of the entire area, including but not limited to patients and their

families, and (4) the community at large. In addition to its

potential effect on the compensation, benefits, and working

conditions of Hospital employees, a successful union organizing

effort would predictably (1) produce fluctuations in the costs of

services and changes in the kinds of services offered at the

Hospital, and (2) increase political pressure from the public to

32 satisfy hospital workers’ demands. Herrera’s pro-union speech,

therefore —— irrespective of an inevitable bit of personal

motivation —— much more directly and substantially addressed a

“matter of public concern” than the majority is willing to

acknowledge. Yet, courts that have considered the question have

uniformly held that speech regarding union activities is almost

always speech on a matter of public concern.2 The majority’s

subtle trivializing of Herrera’s speech as involving matters of

public concern “only insubstantially and in a weak and attenuated

sense”3 finds no justification in this record.

b. State Law Proscription of Recognizing Unions

The majority further suggests that any public-concern aspect

of Herrera’s pro-union speech is largely negated by the Texas

statute that prohibits public agencies from recognizing or

collectively bargaining with labor unions.4 As the majority sees

it, this Texas law creates a crucial distinction between the

2 See, e.g., Boddie v. City of Columbus, 989 F.2d 745, 750 (5th Cir. 1993) (“[S]peech in the context of union activity will seldom be personal; most often it will be political speech.”); see also American Postal Workers Union, AFL-CIO v. United States Postal Serv., 830 F.2d 294, 301 (D.C. Cir. 1987) (“The urge to unionize certainly falls within the category of expression that is ‘fairly considered as relating to any matter of political, social, or other concern to the community . . . .’”) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983). 3 Maj. Op. at lines 412-13. 4 See Tex. Gov. Code § 617.002.

33 instant case, and those like Dep’t of Justice v. FLRA,5 in which

the union that prevailed in a federally-supervised election could

be and was certified under federal law to act as the non-management

employees’ exclusive bargaining agent. As I interpret this

proposition, the majority’s flawed syllogism would go: (1) Unions

organize to represent and collectively bargain for workers; (2)

Herrera’s union is prohibited by law from doing so; ergo, (3)

public-sector employees can have, at most, only a weak and

attenuated public concern with union organizing.

Logic dictates a diametrically opposed reasoning and result.

Denied the right to be represented officially by a union in

collective bargaining and other labor-relation issues, public-

sector employees like Herrera would perceive themselves as having

a greater need for a strong, collective voice in the arena of

public opinion than do employees who can and do have unions as

their direct advocates with the general public as well as with

their employers. Rather than diminishing the degree of Herrera’s

public interest in this organizing effort, this state law

prohibition greatly increases the public-interest aspect of

Herrera’s expression in support of the organizing campaign here.

Further, the interest of Texans in regulating (or not

regulating) labor relations in the public sector is by no means

lessened simply because the Legislature has chosen to be

5 955 F.2d 998 (5th Cir. 1992).

34 restrictive rather than inclusive as regards how government

employers may deal with unions. Neither do Texas’s restrictions on

official recognition and collective bargaining equate with a

lessening of the public’s interest in union activity generally.

Texas public employee unions, through collective action in the

political arena —— such as airing grievances, staging

demonstrations, picketing, attending open board or committee

meetings, and such —— can and do function influentially as

decidedly “public” actors. The larger community inevitably has a

substantial interest in the activities of such unions, irrespective

of their statutory inability to represent formally, or bargain

collectively on behalf of, public employers’ workers.

2.

Connick/Pickering Balancing Process

As noted, the majority ultimately concedes that Herrera’s

speech did involve a matter of public concern; and that his speech

interest therefore must be balanced against “the interest of the

State, as an employer, in promoting the efficiency of the public

services it performs through its employees.”6 The Supreme Court

has identified a number of factors to be considered in performing

this balancing, including whether the employee’s speech (1) impairs

discipline by superiors or harmony among co-workers, (2) has a

detrimental effect on those close working relationships for which

6 Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

35 personal loyalty and confidences are essential, (3) impedes the

performance of the speaker’s duties, or (4) interferes with the

regular operation of the enterprise.7 Except for when a Hospital

supervisor fomented confrontations and work interruptions,

Herrera’s silent, single-button expression had no deleterious

effect on his supervisors’ ability to enforce discipline or on his

harmonious interaction with co-workers. Unlike the enlisted ranks

in paramilitary agencies or ADAs in a DA’s office, Herrera’s

maintenance work was devoid of confidential relationships and

requirements for “personal loyalties.” Neither did his work affect

the quality or volume of the Hospital’s efforts to accomplish its

mission or interfere with the regular functioning of the Hospital,

either in providing professional services or maintaining its

building’s operational condition.

Here, however, the majority eschews (or at least commingles

beyond recognition) consideration of the elements of the Court’s

prescribed approach or those of any similarly detailed analysis of

the real effect of Herrera’s speech. In its place, the majority

confects an artificially inflated efficiency interest for the

Hospital, then proceeds to balance that overblown interest against

the artificially minimized speech interest —— not Hererra’s own, or

even a hypothetical maintenance worker’s, but that of any

hypothetical hospital worker. Yet, even assuming for today’s

7 Rankin v. McPherson, 483 U.S. 378, 388 (1987)(a county constable/clerical employee case).

36 purpose that the majority reaches the correct result —— and I

obviously do not believe that it did —— I still would have to

question the validity of its methodology. More to the point, in

creating and applying this methodology, the majority puts a

judicial thumb on the Connick/Pickering scale by using trivializing

modifiers to minimize Herrera’s speech interests and aggrandizing

modifiers to exaggerate the Hospital’s efficiency interest.

a. The Hospital’s Efficiency Interest

For example, by describing the public-concern element of

Herrera’s speech as being a matter of public concern “only

insubstantially and in a weak and attenuated sense,” the majority

subtly tips the Connick/Pickering scales against Herrera’s speech

interest and in favor of the Hospital’s efficiency interest. This

obfuscation should not be allowed to relieve the Hospital of its

burden of demonstrating an efficiency interest sufficiently high to

justify its denial of Herrera’s First Amendment rights. Yet the

majority finds such a predominating interest for the Hospital,

first by looking to non-adornment policy cases that it proffers as

being similar to the one at issue here, then analogizing efficiency

interests of the public employers in those cases to the Hospital’s

efficiency interest in requiring that all of its employees’

uniforms be worn free of any items of adornment. In so doing, the

majority erroneously equates the efficiency interests of the public

employers in those other cases with the efficiency interest of the

Hospital here.

37 Relying on that purportedly analogous case law should be

unavailing: Those cases deal almost exclusively with government

employers that are either (1) military units, law enforcement

agencies, or paramilitary organizations; or (2) quasi-professional

civilian agencies such as district attorney’s offices and school

boards.8 Just as INS involved uniformed quasi-military Border

Patrol agents and Goldman v. Weinberger9 involved a conventional

military unit, Connick implicated a district attorney’s penumbral

need to enjoy the absolute trust and confidentiality of his lawyer

assistants, and Pickering addressed a school board’s need for a

heightened professional relationship with career teachers. Even

Rankin, itself a law enforcement case, distinguished the special

loyalty, confidentially, and discipline needs of a sheriff vis-à-

vis his deputies and rejected the applicability of this efficiency-

loyalty-discipline interest vis-à-vis a clerical worker —— an

employee much more analogous to Herrera than to deputy sheriffs,

Border Patrol agents, or assistant district attorneys.

Cases such as those relied on by the majority are at best

minimally comparable to this one, if comparable at all. I readily

acknowledge that for law enforcement agencies uniforms serve

8 The majority relies most heavily on the Ninth Circuit’s reasoning in United States Dept. of Justice, Immigration and Naturalization Serv. v. Fed. Labor Relations Auth.,[“INS”], 855 F.2d 1454 (9th Cir. 1988), even though the Hospital’s briefs cite numerous other cases. 9 475 U.S. 503 (1986).

38 employer interests in efficiency and esprit de corps. But such

purposes are materially distinct from any efficiency interests that

unadorned uniforms might conceivably serve for a public hospital in

the context of its non-medical maintenance, food preparation, trash

removal, and clerical staff. The majority acknowledges

(grudgingly) only that “uniforms may be more important in law

enforcement than in other fields”10 —— once again trivializing a

differentiating distinction to support its suggestion that all

public agencies, regardless of mission, share a virtually identical

interest in requiring unadorned uniforms for every category of

employee, regardless of function —— just some to a slightly greater

or lesser extent than others. Respectfully, this simply is not so.

b. Uniforms, Maybe; Items of Adornment, No

The majority signals its agreement with the Ninth Circuit’s

holding in INS,11 by stating that (1) “a uniform requirement [not,

I emphasize, a non-adornment requirement, which could apply to

uniforms and mufti alike] fosters discipline, promotes uniformity,

encourages esprit de corps, and increases readiness,” and (2)

having “standardized uniforms encourages the subordination of

personal preferences and identities in favor of the overall group

mission.”12 Thus, the majority muses, “there is no reason to

10 Maj. Op. at lines 514-15 (emphasis added). 11 855 F.2d at 1464. 12 Id. (citing Goldman v. Weinberger, 475 U.S. at 508 (“[T]he traditional outfitting of personnel in standardized uniforms

39 believe that a uniform requirement will not have somewhat similar

efficiency enhancing effects in the non-law enforcement context.”13

I acknowledge the verity of this broad tautology, with its

elastic use of “somewhat similar.” To it I must add, however,

that, in the much more àpropos context of non-law enforcement,

public employers like the Hospital, making the additional non-

adornment facet of a uniform requirement equally applicable to

maintenance and clerical workers as to doctors, nurses, therapists,

etc. at most enhances efficiency “only insubstantially and in a

weak and attenuated sense” —— to quote the majority. The

ineluctable fact is that (1) uniforms bearing only the employer-

prescribed insignia are central and paramount to the core interests

of military and law enforcement agencies; but (2) having Herrera

and his subset of workers wear no adornments on their work clothes

would contribute minimally, if at all, to such clearly secondary or

tertiary interests of civilian institutions like hospitals. And,

again, we must remain consciously aware that it is not the uniform

requirement per se that Herrera violated; rather, his free speech

clashed with the Hospital’s application of the non-adornment

appendage of that policy to its custodial and clerical segment of

staff.

encourages the subordination of personal preferences and identities in favor of the overall group mission.”)).

13 Maj. Op. at lines 523-25 (emphasis added).

40 Finally, the majority treats the Hospital’s avowed interest in

requiring maintenance workers to wear unadorned uniforms as though

it were a natural extension of, or progression from, this and other

courts’ past validations of law enforcement agencies’ efficiency

interest in uniforms and thus in non-adornment. The majority might

be comfortable with this non sequitur but, as I shall further

demonstrate, in the discrete context of this case, such a leap does

not bridge the gap between unadorned uniforms of military and law

enforcement employees, and unadorned uniforms of the very

distinguishable subset of blue-collar workers in a civilian public

c. Efficiency

For openers, it appears to be lost on the majority that

“efficiency” as a governmental employer’s interest under

Connick/Pickering, necessarily means different things in different

settings. As previously observed, “esprit de corps,” “readiness,”

and “subordination of personal preferences” are undoubtedly

critical to the efficient and effective operations of law

enforcement agencies —— as they likely are to the efficient

functioning of a public hospital’s operating rooms, ICUs, catheter

labs, and emergency rooms. But where is there any contribution

from esprit de corps or unquestioning responses to orders to the

efficient operation of the Hospital’s physical plant, file rooms,

and cafeterias? Non-healthcare employees who work those areas,

like the sheriff’s clerk in Rankin, essentially fly beneath the

41 radar and perform tangential support functions that are subordinate

to and separate from the overarching healthcare mission of the

Hospital. With respect, I urge that the majority overreaches when

it stretches the Ninth Circuit’s INS law-enforcement holding to

cover the “somewhat similar” efficiency interest of the Hospital in

applying its non-adornment uniform policy to Herrera. This

distinction becomes undeniably telling when the majority finally

addresses the Hospital’s specific interest in maintaining an

unadorned-uniform policy for its custodial and clerical workers ——

an alleged interest that simply cannot be forced to resemble, even

slightly, those of law enforcement or paramilitary agencies. Yet,

as the majority flatteringly describes it, the Hospital finds it

“highly desirable” for its maintenance workers to “be easily

identifiable as such” and “present an appropriate appearance.”14

Even if, arguendo, such self-serving and conclusional protestations

were to be credited, how could a single pro-union button lessen the

ease of identifying Herrera as a maintenance worker or the

propriety of his appearance?

This healthcare facility’s interest, however logical and

legitimate it may sound in a vacuum, is a far cry from the

interests in esprit de corps, readiness, or unquestioning response

to orders that courts have recognized as key to law enforcement

agencies’ speech-restricting anti-adornment regulations. But, even

14 Maj. Op. at lines 535-37 (Emphasis added).

42 granting that a civilian hospital can somehow rationalize an

abstract desirability of having its maintenance personnel wear

identifying uniforms sans pins or patches, there is still just no

way to equate the efficiency value of the non-adornment gloss that

the Hospital has engrafted on its basic uniform policy with the

indisputably greater value of prohibiting competing adornment on

law enforcement and military uniforms. I agree that in cases of

that type, addressing as they do law enforcement agencies and

military units, uniforms that are required to be adorned with such

employers’ own functional insignia —— chevrons, bars, leafs, stars,

unit patches, and such —— serve very real efficiency purposes

within and without their ranks. Moreover, it is axiomatic that

such function-serving items cannot abide the presence on such

uniforms of competing or distracting insignia of the wearer’s

personal choice. Not so, however, for the monochromatic denims,

dungarees, whites, or khakis required of custodial personnel,

cafeteria workers, and file clerks, free, as they are, of any

functioning insignia of rank, unit, or specialty. There simply can

be no confusion or ambiguity when such otherwise insignia-less garb

is “adorned” with a single pro-union button.15 It defies logic to

conclude that one such item on the otherwise unadorned work uniform

15 Indeed, in Lubbock —— or Midland or Odessa or and many other communities in this circuit —— the partisan football supporters’ buttons and stickers that the Hospital permits as one of several exceptions (thereby destroying its claim to the policy’s neutrality), are more likely to cause rancor and confrontation than would even a union label in that right-to-work-state.

43 of an in-house carpenter, plumber, cafeteria worker, file clerk,

electrician, or janitor could negatively affect any efficiency-

enhancing function of their work dress —— at least not in the real

world.

d. Herrera’s Speech Interest

As made clear by the Supreme Court in identifying Rankin’s

four non-exclusive factors to be used in balancing the competing

interests of a constable and his clerical staff, the weight

afforded an employee’s speech interest in the

Connick/Pickering balancing process depends to a great extent on

the peculiarities of not only the speech itself, but also on the

specific work and job description of the individual

employee/speaker within the government employer’s operational

structure. Stated differently, what’s sauce for a public

hospital’s doctor or technician “goose” is not necessarily sauce

for its carpenter or file-clerk “gander.” The majority, however,

appears disinclined to analyze how Herrera’s particular expression

might in reality affect the Hospital’s accomplishment of its

principal mission, as contemplated by the Supreme Court in Rankin.

Had the majority dutifully conducted such an analysis, it just

might have been compelled to conclude that the Hospital’s policy

prohibiting items of adornment on uniforms (with notable

exceptions, I repeat) was unduly restrictive as applied to Herrera

and his “Union Yes” button. Perhaps, then, it was to avoid this

troublesome truth that the majority chose to make no personal

44 reference to Herrera (or to the separate subset of maintenance

employees) in its evaluation of the competing interests to be

balanced. Instead, the majority globally lumps together all

“Hospital employees,” as though large segments (maintenance,

janitorial, food preparation, clerical) are indistinct from other

segments (health care specialists, medical and quasi-medical

employees) for the purpose of assigning relative weights to such

interests in the conduct of the Connick/Pickering balancing test.

I need not labor longer to demonstrate the obvious flaw in the

majority’s approach.

e. Blanket Application of Uniform Adornment Policy

The majority makes much of its belief that the Hospital’s non-

adornment policy is content-neutral and therefore may be applied

equally to all employees. At first blush, a policy thus configured

might appear to be desirable and expedient for public civilian

hospitals; but if it is to survive a First Amendment challenge, it

must do so on a highly individualized, case-by-case basis. The

majority incants this maxim, of course, but goes on to honor it

only in the breach. It fails to address the particular

circumstances of this case, most notably among which is the fact

that Herrera is a maintenance worker —— indistinguishable from his

counterparts in virtually every functioning edifice, whether public

or private —— who has some visibility but almost no direct

interaction with hospital patients and their families, or, for that

matter, with M.D.s, RNs, med techs, or executives in management

45 positions. This framework must not be ignored or belittled when

balancing Herrera’s speech interest against the Hospital’s interest

in efficiency. A hospital policy that is properly found to

outweigh the adornment “speech” rights of doctors, nurses, LPNs,

and technicians, as well as management executives, can at the same

time be constitutionally outweighed by the free-speech rights of

rank-and-file non-healthcare workers like Herrera.

The majority nevertheless tests the Hospital’s non-adornment

policy without distinguishing between such subsets of its work

force and finds the policy appropriate for all employees, across

the boards. Such a conclusion may be reached legitimately only

after a full and detailed consideration of every factor unique to

the case under consideration, i.e., by recognizing that, when it

comes to unadorned uniforms, there can be “different strokes for

different folks.” I refer in particular to the nature of Herrera’s

employment and job description, and the extent to which his kind of

work —— and his appearance at work —— necessarily affects how much

or how little weight should be given to his speech rights in this

court’s de novo conduct of the Connick/Pickering balancing process.

3.

Broader Import of This Case

Finally, the majority is quick to warn that, if we allow

Herrera’s pro-union speech to trump the anti-adornment aspect of

the Hospital’s uniform policy as applied to Herrera, this case

could be just the tip of a free-speech iceberg that would threaten

46 the safe passage of many another government employer’s tranquil

vessel. But this “horrible” just won’t join the parade: If the

Rankin approach is faithfully followed, the nature of an employee’s

speech and the context in which it is uttered will always consist

of case-specific factors that must be included in the free-speech

calculus employed by courts faced with similar public workplace

First Amendment challenges. Obviously, the particular Rankin

factors of some kinds of speech by some categories of employees

will carry more weight on the Connick/Pickering balance beam than

will others. To suggest, however, that the approach and result I

advocate in this case would produce a precedential pandemic

infecting a multitude of civilian public employers with an onerous

burden of tolerating any and all manner of on-the-job speech, is

nothing more than hype. This warning misapprehends the nature of

the analysis that should be undertaken and exaggerates any

potential precedential effect of our protecting Herrera’s speech,

as a non-paramilitary, non-professional laborer in the civilian

sector of public service. An objectively proper exercise of the

balancing test will itself contain all the safeguards needed to

avoid the scary results predicted by the majority. Its present

fears are far less than its horrible imaginings.

- - - - - - -

I am never completely free of discomfort when dissenting from

colleagues in a three-judge panel, much less in the face of a

supermajority of my colleagues sitting en banc. This is especially

47 so when, as here, the majority opinion is penned by a jurist of

Judge Garwood’s preeminence and reputation. Nevertheless, for the

foregoing reasons and those set forth in the panel majority opinion

that was vacated to rehear this case en banc,16 I must respectfully

dissent.

16 Communication Workers of America v. Ector County Hosp. Dist., 392 F.3d 733 (5th Cir. 2004).