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In a 13-4 decision on Oct. 5, the 5th U.S. Circuit Court of Appeals held that a hospital’s interest in preventing disruption of its services by banning an employee from wearing a pro-union button trumps the employee’s First Amendment free-speech right. Sitting en banc, the 5th Circuit reversed a three-judge panel’s December 2004 decision in Communications Workers of America and Urbano Herrera. v. Ector County Hospital District, d/b/a/ Medical Center Hospital, et al. On rehearing, the 5th Circuit majority applied the balancing test in the 1968 U.S. Supreme Court decision in Pickering v. Board of Education in the hospital’s favor. The test weighs the interests of an employee as a citizen against the interests of the government employer in promoting efficiency in how it provides its services. “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,” Judge Will Garwood, the dissenter in the panel’s 2004 decision, wrote for the majority in Communications Workers. Judge Jacques L. Wiener Jr. wrote in a dissenting opinion that the majority had understated how substantially Herrera’s speech in this case involves matters of public concern and overstated the significance of the anti-adornment policy in advancing the facility’s interest in workplace efficiency. Wiener further wrote that, as applied to Herrera and his fellow custodial and clerical workers, the hospital’s prohibition against the wearing of any adornment on the mandatory uniforms infringes on Herrera’s First Amendment right to freedom of expression. Judges Harold DeMoss Jr., Carl E. Stewart and James L. Dennis joined Wiener in the dissenting opinion. According to the majority opinion, the hospital’s dress code provides that employees can wear only pins representing a professional association and the most current hospital award. As noted in the opinion, the hospital makes few exceptions to the non-adornment policy. One exception allows employees who are graduates of Odessa High School or Permian High School to wear their school colors during the week that the two schools have their annual gridiron clash. Other exceptions allow employees to wear buttons promoting the “Great American Smoke Out” day and blood drives. Garwood noted in the majority opinion that a supervisor disciplined Herrera, a carpenter at Medical Center Hospital and an organizer for Communications Workers of America (CWA), after he wore a button on his uniform that read: “Union Yes.” Herrera at first refused to remove the button, telling a supervisor, “I’m not going to take it off. If you want it off, then you take it off.” Although Herrera removed the button after a supervisor made him read a copy of the hospital’s dress code, which includes a non-adornment provision, Herrera put the button back on after consulting with the CWA. [See "5th Circuit Says Yes to "Union Yes" Button in Free-Speech Case," Texas Lawyer, Dec. 13, 2004, page 5.] The month after the incidents, Herrera received only a 3 percent annual raise rather than the usual 4 percent. His supervisor also suspended Herrera without pay for three days, according to the 5th Circuit’s majority opinion. Herrera and the CWA filed a �1983 civil rights suit against the hospital in 2001 in the U.S. District Court for the Western District of Texas in Midland, seeking compensation for Herrera’s lost pay and benefits, an injunction to prohibit future enforcement of the non-adornment policy with regard to pro-union pins and a declaration that the ban on wearing the union pins is unconstitutional. The hospital responded by filing a motion to dismiss the suit and, in the alternative, a motion for summary judgment. The district court partially granted the plaintiffs’ summary judgment motion and ruled that Herrera’s wearing of the pro-union button on his uniform while at work constituted speech on a matter of public concern. However, the court held that a jury trial was necessary to resolve the appropriate Pickering balancing. In 2002, after the hospital presented its evidence, U.S. District Judge Royal Ferguson granted the plaintiffs’ motion for judgment as a matter of law, awarding Herrera about $550 in damages and awarding $91,000 in attorneys’ fees. Ferguson also concluded that, under the evidence, the Pickering balancing test favors the CWA and Herrera and issued a permanent injunction requiring the hospital to allow employees to wear pro-union buttons. The 5th Circuit panel agreed in its 2-1 decision in December 2004. But on rehearing, the 5th Circuit held that, as a matter of law, the Pickering balance weighs in favor of the hospital, “which may conclude that its uniform non-adornment policy furthers its mission by neutrally fostering a tranquil and peaceful, as well as neat, clean and care-focused, atmosphere for its patients and visitors.” The 5th Circuit majority also concluded that the union buttons at issue in Communication Workers clearly are less substantially speech on a matter of public concern because Texas law prohibits a political subdivision from recognizing a union as a bargaining agent for employees. David Van Os, attorney for the CWA and Herrera, disagrees. “To say Mr. Herrera’s speech was not a matter of public concern because public employees do not have collective bargaining rights is absurd,” Van Os says. Unions advocate for their members’ rights and have the right to represent members in grievance proceedings, says Van Os, owner and manager of San Antonio’s David Van Os & Associates. Van Os says it’s up to the CWA whether to file a writ of certiorari with the U.S. Supreme Court, but that he thinks it should. “We think that the en banc court got it right,” says Miles Nelson, a partner in Odessa’s Shafer, Davis, O’Leary & Stoker and one of the attorneys representing the hospital district. Nelson says the majority properly analyzed the non-adornment policy and determined that it did not infringe on Herrera’s freedom of expression. “If the speech touched on a matter of public concern it was attenuated or weak at best,” Nelson says.

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