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It’s hard to believe a government hospital made a federal case out of a little lapel pin. But that’s exactly what the Ector County Hospital District did after a worker wore a button on his work clothes that said “Union Yes.” Now the 5th U.S. Circuit Court of Appeals in a 2-1 opinion has ruled that the hospital district violated Urbano Herrera’s First Amendment right to free speech. His supervisor disciplined Herrera, a carpenter at Medical Center Hospital, after he wore the button in violation of the hospital’s dress code. Herrera was an organizer for the Communication Workers of America (CWA), according to the 5th Circuit’s Dec. 1 opinion in CWA and Herrera v. Ector County Hospital District, d/b/a Medical Center Hospital. Herrera had refused to remove the button, telling his supervisor: “I’m not going to take it off. If you want it off, then you take it off.” According to the opinion, he took the button off after his supervisor made him read a copy of the hospital’s dress code, which contains a non-adornment provision that prevents employees from wearing such insignias. But Herrera put the button back on after consulting with the CWA, which told Herrera his supervisor could not require him to remove it. He then had another confrontation with his supervisor. The incidents were noted in Herrera’s disciplinary file. As a result, he received only a 3 percent annual raise rather than the usual 4 percent. Other workers who wore the buttons also were disciplined, according to the opinion. So in 2001 Herrera and the CWA filed a 1983 civil-rights suit against the hospital with U.S. District Judge Royal Ferguson. They sought compensation for lost pay and benefits, attorneys fees, an injunction prohibiting future enforcement by the hospital of its policy against the peaceable wearing of pro-union buttons, and a declaration that the hospital’s ban on wearing the union buttons is unconstitutional. The hospital responded with a motion to dismiss the suit and, in the alternative, a motion for summary judgment. It contended that the anti-adornment component of its dress code is content-neutral and does not implicate free speech or free association. Ferguson agreed with Herrera and the CWA on most of their points, but held a jury trial in 2002 to determine two issues — the extent of Herrera’s interaction with the public and the disruptive effect, if any, of his wearing the button on the hospital’s operations, according to the 5th Circuit opinion. After the hospital presented its evidence, but before the jury could render a decision, the lawyer representing Herrera and the CWA asked Ferguson for a judgment as a matter of law. Ferguson granted the JMOL motion and issued a final order that awarded nearly everything Herrera and the CWA asked for, including $90,000 in attorneys’ fees. The hospital appealed to the 5th Circuit, “contesting virtually every factual finding, legal conclusion, and procedural ruling” Ferguson made, according to the opinion. BALANCING TEST To arrive at its decision, the 5th Circuit applied the Pic kering/Connick balancing test. That test, which is based on a 1968 U.S. Supreme Court decision in Pickering v. Board of Education, weighs the interests of an employee as a citizen to comment on matters of public concern against the interests of the government as an employer to promote efficiency in how it provides its services. Writing for the majority, Judge Jacques Wiener — who was joined by Judge Harold DeMoss — found that Herrera and CWA’s arguments passed the Pickering/Connick test with “flying colors.” Herrera and the CWA have a free-speech right to wear the lapel buttons because the pins were a comment 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 hospital has not produced any probative evidence demonstrating that the wearing of a ‘Union Yes’ button by a carpenter � is likely to produce such deleterious effects.” Wiener shredded the hospital’s argument that the dress code it enforced was purely content-neutral and that it disciplined Herrera only for insubordination. “If Herrera had not engaged in free speech, he would not have been ordered to cease; if he had not been so ordered repeatedly, he would not have repeatedly refused to cease,” Wiener wrote. Wiener also ripped the hospital and its lawyers for employing a “scorched earth” appellate strategy in challenging virtually every factual finding and legal conclusion made by Ferguson “no matter how slight or relatively insignificant.” “This strategy may be warranted on rare occasions,” Wiener wrote. But “in the instant case, many of the hospital’s arguments border on the frivolous.” Senior Judge Will Garwood dissented, finding the majority improperly banned the hospital’s content-neutral policy of forbidding all buttons, no matter what they say. “It is indeed a jurisprudence gone badly astray which precludes the nondiscriminatory, evenhanded application of the hospital’s content neutral uniform anti-adornment policy to the wearing of ‘Union Yes’ buttons,” Garwood wrote. “We are taking a seriously wrong fork in the road.” “GUT REACTIONS” David Van Os, who represents Herrera and the CWA, says the majority reached the correct conclusion — it’s just a shame his clients had to go so far to get the decision. “Employees in nonmanagement, non-administrative positions shouldn’t have to go through so many hoops for the right to wear a little button that isn’t in the slightest bit inflammatory or obscene, it just says ‘Union Yes,’” Van Os says. “The way the hospital lawyers litigated this case was Rambo to the max,” Van Os says. “Over a little button.” William Berry, a lawyer with Odessa’s Shafer, Davis, Ashley, O’Leary who represents the Ector County Hospital District, did not return two telephone calls seeking comment. But believe it or not, the case over the little button is the kind of dispute that may catch the attention of the U.S. Supreme Court should the hospital decide to appeal, says David Schenck, an appellate partner in the Dallas office of Jones Day. The high court may want to revisit its own Pickering/Connick test because of this case, Schenck says. “Part of the problem is when the Supreme Court set out the Pickering balancing test, you get fuzzy factors instead of a rule of law. And so everybody has their own subjective feelings about how those factors play in a particular case,” Schenck says of the CWA case. The Pickering/Connick test requires trial judges to rule by their “gut reactions” to a particular case rather than follow rock-solid law, Schenck says. “It’s a constitutional problem, and it’s been a while since the Supreme Court addressed governmental free speech, and you have a divided 5th Circuit,” Schenck says. “And what if this guy’s button said ‘Peace in Iraq’? Those are all parts of these factors, and it’s all up to the judges.” The decision ultimately means that Herrera gets about $1,000 in back pay, and no one can tell him to remove his “Union Yes” button, Van Os says. Unfortunately, Herrera never will know that. He died in 2003 after an accident in which he fell from his home’s roof while making repairs. “I’m really sad that he is not around to enjoy this 5th Circuit affirmance,” say Van Os, who notes that any monetary recovery will go to Herrera’s estate. “This meant a lot to him.”

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