CWA v. Ector Cty Hosp Dist , 402 F.3d 503 ( 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
                               No. 03-50230
         doing business as Medical Center
         Hospital, ET AL,
         doing business as Medical Center Hospital,
              Appeal from the United States District Court
                    for the Western District of Texas
    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
    402 F.3d 503
     (5th Cir. 2005).           We now reverse, holding
            Communications Workers of America v. Ector County Hospital
    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).
    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
            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.
    balancing test favors Plaintiffs.” Id. at 632. The panel majority
    affirmed, reaching the same conclusion.                  CWA III, 392 F.3d at 742-
           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),
    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
    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
            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.
    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
             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.
            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.
    “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
           While that transpired the other workers in the area stopped
    what they were doing and watched.
           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
    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
            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.”
            In May 2000 the local Union president ran unsuccessfully
    for a position on the Hospital’s board of directors.
    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
             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).
    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
              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).
    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,”
         “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
             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.
    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.”
    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.
    93 S. Ct. 2908
     (1973) and Civil Service Comm’n v. Letter
    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
    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.”
             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
    Garcetti, 126 S.Ct. at 1957.    As the Court went on to explain in
         “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
    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,
         “. . . 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
    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
         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
    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.
         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
    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.
    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
            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 . .
    “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,
           see Rankin, 
    483 U.S. 378
    107 S. Ct. 2891
    .”        (126 S.Ct. at
    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
             See also United States v. National Treasury Employees
    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.
    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
             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.
    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
    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.
    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
              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.
    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.
         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
              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
    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.
    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).
    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
              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
    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
                  REVERSED and REMANDED with directions
             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).
    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
         (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
         (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
              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
           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)).
    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
    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
           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
    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).
             Maj. Op. at lines 412-13.
             See Tex. Gov. Code § 617.002.
    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
    955 F.2d 998
     (5th Cir. 1992).
    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.
                       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
             Pickering v. Bd. of Educ., 
    391 U.S. 563
    , 568 (1968).
    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
           Rankin v. McPherson, 
    483 U.S. 378
    , 388 (1987)(a county
    constable/clerical employee case).
    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.
         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
           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.
    475 U.S. 503
    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
              Maj. Op. at lines 514-15 (emphasis added).
              855 F.2d at 1464.
           Id. (citing Goldman v. Weinberger, 475 U.S. at 508 (“[T]he
    traditional outfitting of personnel in standardized uniforms
    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
    encourages the subordination of personal preferences and identities
    in favor of the overall group mission.”)).
                Maj. Op. at lines 523-25 (emphasis added).
          Finally, the majority treats the Hospital’s avowed interest in
    requiring maintenance workers to wear unadorned uniforms as though
    it were a natural extension of, or progression from, this and other
    courts’ past validations of law enforcement agencies’ efficiency
    interest in uniforms and thus in non-adornment. The majority might
    be comfortable with this non sequitur but, as I shall further
    demonstrate, in the discrete context of this case, such a leap does
    not bridge the gap between unadorned uniforms of military and law
    enforcement      employees,        and    unadorned      uniforms    of    the    very
    distinguishable subset of blue-collar workers in a civilian public
          c.    Efficiency
          For openers, it appears to be lost on the majority that
    “efficiency”      as     a    governmental        employer’s     interest        under
    Connick/Pickering, necessarily means different things in different
    settings.   As previously observed, “esprit de corps,” “readiness,”
    and   “subordination         of    personal     preferences”     are      undoubtedly
    critical    to    the    efficient       and    effective    operations      of    law
    enforcement      agencies     ——    as   they   likely    are   to   the   efficient
    functioning of a public hospital’s operating rooms, ICUs, catheter
    labs, and emergency rooms.               But where is there any contribution
    from esprit de corps or unquestioning responses to orders to the
    efficient operation of the Hospital’s physical plant, file rooms,
    and cafeterias?         Non-healthcare employees who work those areas,
    like the sheriff’s clerk in Rankin, essentially fly beneath the
    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
                Maj. Op. at lines 535-37 (Emphasis added).
    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
           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.
    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
         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
    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
    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.
                        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
    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
    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
            Communication Workers of America v. Ector County Hosp.
    392 F.3d 733
     (5th Cir. 2004).