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Click here for the full text of this decision FACTS:While employed by the Ector County Hospital District as a carpenter, the appellant, Urbano Herrera, became a volunteer organizer for the Communication Workers of America. Herrera and other hospital employees who supported the Union’s organizing efforts received “Union Yes” lapel buttons from CWA representatives. Herrera and others decided to wear the buttons during their work shifts at the hospital in knowing violation of the hospital’s dress code, which contains a specific non-adornment prohibition that forbids the wearing of most such insignia. Following a confrontation with his direct superior, John Durham, who insisted that the button be removed, Herrera was advised that he would be suspended for three days without pay for his refusal to remove the button. His disciplinary record was expanded to reflect the incident. Because of his being disciplined, Herrera received only a 3 percent annual raise, rather than the usual 4 percent. Herrera filed a 1983 action. Before the jury trial began, the district court ruled on the basis of the summary judgment record that plaintiffs had carried their burden of establishing a prima facie case of a Constitutional violation. Therefore, ruled the district court, the hospital had the burden of producing evidence on the remaining questions that had been left unresolved in the summary judgment and remained necessary for the completion of the Pickering/Connick balancing test Pickering v. Board of Education, 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138 (1983) whether Herrera’s employment involved significant interaction with the public and whether his actions threatened to disrupt the Hospital’s operations. Following completion of the hospital’s case at trial, the plaintiffs filed a motion for judgment as a matter of law, which the court granted. The hospital timely filed a notice of appeal HOLDING:Affirmed. When a public employer adopts a policy that impinges on the speech of its employees, the court applies the Pickering/Connick balancing test, weighing the interests of the employee, as a citizen, to comment on matters of public concern against the interests of the government, as an employer, to promote efficiency in its providing of services. In this circuit, that balancing test is integrated into a four-step analysis: first, the employee must demonstrate that the speech at issue addressed a matter of public concern. If it can be characterized as such, the court applies the Pickering/Connick balancing test, thereafter continuing to the final two steps only if the court concludes that, on balance, the public employee’s speech rights outweigh the public employer’s interest in the efficient providing of services. These first two steps are legal in nature and are for the court to resolve. The third and fourth steps are factual in nature, requiring determinations of first, whether the protected speech was a substantial or motivating factor in the adverse employment decision; and, second, if it was, then whether the employer would have made the same employment decision in the absence of the protected speech, a “but for” inquiry. The infringement on Herrera’s rights in this case was inflicted pursuant to an official hospital policy, the court concludes. Given its content and its context, i.e., during the course of an ongoing union organization effort, Herrera’s wearing of the lapel pin was speech on a matter of public concern. Although the Pickering/Connick balancing test allows public employers to ban inflammatory or disruptive speech in legitimate efforts to ensure the efficient delivery of services, the court finds that the hospital has not produced any probative evidence demonstrating that the wearing of a “Union Yes” button by a carpenter or other member of the Integrated Services subset of its employees is the kind of speech that has produced, or is likely to produce, such deleterious effects. “Finally, we see the Hospital’s dogged insistence that Herrera was disciplined solely for insubordination � and not at least in significant part for a dress code violation to be contrived and disingenuous sophistry at best, and mendacious at worst. We likewise conclude that the Hospital’s complaints about the procedural rulings of the district court and its award of attorneys’ fees are without merit, in no way approaching the level of abuses of discretion.” OPINION:Wiener, J.; Garwood, Wiener and DeMoss, JJ. DISSENT:Garwood, J. “A”uniform requirement fosters discipline, promotes uniformity, encourages esprit de corps , and increases readiness’ and standardized uniforms encourage the subordination of personal preferences and identities in favor of the overall group mission. INS v. Federal Labor Relations Authority, 855 F.2d 1454, 1464 (9th Cir. 1988). There is no reason to believe that a uniform policy will not have similar efficiency promoting effects in the non-law-enforcement context. . . .” “It is indeed a jurisprudence gone badly astray which precludes the nondiscriminatory, evenhanded application of the hospital’s content and viewpoint neutral uniform anti-adornment policy to the wearing of”Union Yes’ buttons on duty, but at the same time, under Letter Carriers, Broadrick and Wachsman, permits the Hospital District to adopt and even handedly enforce a content and viewpoint neutral regulation forbidding all its employees from, even when off duty, addressing a political rally for an election to the Hospital District’s Board or handing out campaign literature for such an election, matters of much more public concern, but far less closely related to employment, than the adornment with”Union Yes’ buttons of employee uniforms worn at work.” “We are taking a seriously wrong fork in the road. I respectfully dissent.”

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