CWA v. Ector Cty Hosp Dist ( 2006 )

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
hospital.
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).
48