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, 

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

Communications    Workers   of    America    v.   Ector   County   Hospital

District, 

(5th Cir. 2005).           We now reverse, holding



     1
        Communications Workers of America v. Ector County Hospital
District, 

, 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.” 

     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, 

(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,

, 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 

. 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). 

test favors Plaintiffs.” 

The panel majority

affirmed, reaching the same conclusion.                  CWA 

-

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 

(“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, 

, 520 (5th Cir. 1992), aff’d, 

, 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, 

, 1886

(1994); Garcetti v. Ceballos, 

, 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, 

(1973) and Civil Service Comm’n v. Letter

Carriers, 

(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, 

(1983),

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

, 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, 

, 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, 

(5th Cir.
1983) (local employees, non-partisan candidate elections); Burrus
v. Vegliante, 

, 86, 89 (2d Cir. 2003) (1993 Hatch Act
amendments).

                                         14


.    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.” 

.

See also 

(quoting 

, 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.”
     

     . . .

     “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.” 

     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, 

(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.     

  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 

[(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].” 

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.”      

     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 

).



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.     

.   “Whether an employee’s

speech addresses a matter of public concern must be determined by

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

.    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, 

, 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.”        

.


                                       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, 

(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 

.    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, 

, 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, 

(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., 

-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.”       

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.”       

.           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, 

,
       

, or discussing politics with a co-worker,

                                       21
       see Rankin, 

, 

.”        (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., 

(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.”       

(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, 

, 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 

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

objects of their own choosing undermines the very purposes that

uniforms serve.”      

.    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 

,

       “. . . 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,
       

, 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)].” 

       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.”            

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, 

(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.’” 

(emphasis added) (quoting N.Y. Times Co. v.

Sullivan, 

, 721 (1964)); Carey v. Brown, 

, 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.’” 

at 2295 (quoting with approval from Justice Black’s

concurrence in Gregory v. Chicago, 

, 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 

; Burger King v. NLRB, 

, 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.” 

(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, 

, 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, 

, 1732-33 (1988)
(teacher’s letter to newspaper criticizing Board of Education’s
school finance proposal); Perry, 

, 2696 (1972)
(college teacher’s legislative testimony supporting position
opposed by college’s board of regents); Mt. Healthy City School
District v. Doyle, 

, 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., 

, 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, 

, 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, 

(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 

).

                                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, 

, 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., 

, 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, 

, 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., 

, 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, 

, 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
         

(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., 

, 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, 

, 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”], 

(9th Cir. 1988), even though the Hospital’s briefs cite
numerous other cases.
     9
         

(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).
     

.
     12
       

v. 

(“[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., 

(5th Cir. 2004).


                                48