# Petition — Lake Michigan College Federation of Teachers v. Lake Michigan Community College

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 427 U.S. 650

## Text

IN THE | MICHAEL ROBAK, JR.CLEBK

Supreme Court of the United States

OCTOBER TERM, 1975

fo 698 |

CORR ORO eee eee

LAKE MICHIGAN COLLEGE FEDERATION OF TEACHERS’ and
EDWARD SHAFFER, Individually and as Representative of
Othe: Individuals Similarly Situated and Too Numerous
to Conveniently be Here Set Forth,

Petitioner,

v.

LAKE MICHIGAN COMMUNITY COLLEGE, a Public Education
Institution Established Under the Laws of the State of Michigan,
et al,

Respondent,
and
FRANK J. KELLEY, Attorney General of the State of Michigan,
Intervening Respondent.

a.
4

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE
SIXTH CIRCUIT

dy
a

FIEGER, GOLDEN & COUSENS
By: BERNARD J. FIEGER
MARK H. COUSENS and
GAYLE BOESKY
Counsel for Petitioners
19390 West Ten Mile Road
Southfield, Michigan 48975
(313) 355-5555

( $$ 2 —eeaaeeeeSMSMS.SSe eee
ET oO
Interstate Brief & Record Co., 1036 Beaubien St., Detroit, Michigan 48226

962-8745—962-8732

TABLE OF CONTENTS

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Constitutional Provisions, Rules and Statutes In-
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Reasons for Granting this Writ.................. 9
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INDEX TO AUTHORITIES CITED

Cases

Page
Adams v Walker, 492 F2d 1003 (7th Cir. 1974)...... 27
Arnett v Kennedy, 416 US 134 (1974)............ 25, 27
Baggett v Richardson, 473 F2d 863 (5th Cir. 1973) 33
Bloch v Bloch, 473 F2d 1067 (3d Cir. 1973)........ 33
Board of Regents v Roth, 408 US 564 (1972)...... 9, 12, 22,

24, 28

Caramico v Secretary of the Department of Housing
& Urban Development, 509 F2d 694 (2d Cir.
SUED necccdécccetaccccccesesueunvesscieanss 20, 21

Hortonville Edueation Association v Hortonville
Joint School District, 66 Wise 2d 629, 225 NW2d
658, 88 LRRM 3075 (1974); cert granted 44

USLW 3200, October 6, 1975............ 12, 13, 28, 29
Indiana State Employee Assoc. Ine. vy Boehning,

Sil F3a S34 (7th Cir. 1978)... ccccccscccces 27
Inland Steel Co. v NLRB, 170 F2d 247 (7th Cir.

SEE su
’
¢

17

ing agreement Consequently, the teachers’ property in-
terest provided by Article X was not affected by the ter-
mination of the 1970-72 collective bargaining agreement,
nor by the termination of the 1972-73 day-to-day agree-
ment.

C. Petitioners have a legitimate expectancy of continued
employment.

There is a second theory which provides that termina-
tion of the day-to-day agreement would not terminate the
teachers’ property interest. This argument is based on
what for the lack of a better title must be called the *‘legiti-
mate expectancy” theory.

The Court of Appeals viewed the teachers as having no
hold on their employment at all. The Court of Appeals
viewed their positions as terminable at will. However, this
is an unrealistic view of the situation as it actually existed.
Consider the following hypothetical. Suppose, during the
time the faculty was discharged for striking, there was
a teacher, who either had or had not engaged in the work
stoppage. The Board decides to discharge that teacher
for incompetency or some other reason described as cause
in the Security of kmployment provision of the former
collective bargaining agreement. The Court of Appeals’
decision would allow the College to fire the teacher without
providing any due process protections. That a Court
actually considering that question would so hold is un-
likely. The full-status teachers that have not engaged in
work stoppage have a reasonable expectancy of continued
employment whether or not a contract is in force. And
all teachers have a reasonable expectancy of continued
employment until it is proven that they have engaged in

18

an illegal strike. At that point their reasonable expectancy
ends.

In Soni v. Board of Trustees, 513 F. 2d 374 (6th Cir.
1975), the Sixth Circuit affirmed the District Court’s hold-
ing that a professor who is nontenured, and whose contract
had not been renewed had acquired a property interest
since the University objectively acted toward him so as
to lead him to believe he was a person with a relative
degree of permanency in the academic community of the
University. 513 F.2d at 350.

The Court of Appeals found that Appellee had a pro-
perty interest even though the University had a formal,
well established tenure system. Discussing the Supreme
Court’s decision in Perry v. Sindermann, 408 U.S. 593
(1972) the Court of Appeals stated,

The Supreme Court has stated that a legitimate
expectancy of continued employment ‘is particularly
likely in a college or university ... that has no ex-
plicit tenure system even for senior members of its
faculty, but that nonetheless may have created such
a system in practice’. (Citing Perry). The court
did not say, as it easily could have, that a reason-
able expectancy cannot arise in the context of a
formal tenure system. The existence of such a sys-
tem is but one factor for the trial court to consider
in analyzing the due process claim of a formally
nontenured professor. 513 F.2d at 351.

The Court of Appeals attitude toward property interests
in Sont v. Board of Trustees, supra, is much more flexible
and realistic than its attitude in the instant case. (The
difference in attitude may be due to the fact that teachers
in the instant case were discharged for allegedly engaging

19

in an illegal strike.) The full-status teachers certainly
have a reasonable expectancy of continued employment
whether a collective bargaining agreement is in existence
or not. It must be remembered that in the instant case
we are talking about many teachers who had been with the
College for a substantial period of time, some since the
inception of the College. (Appendix C at Page 49).
Unless it can be shown in a hearing that the teachers en-
gaged in a strike or were terminated for cause, these tea-
chers have a reasonable expectancy of continued employ-
ment with the College.

The fact that this case arose from a strike situation
apparently caused the Court of Appeals to lose perspective
of the rights of the teachers. Seemingly, the Court felt that
teachers striking in violation of State law have no reason-
able expectancy of continued employment. What the Court
did was implicitly adjudge all of the teachers guilty of :l-
legally striking. Since striking by a public employee is il-
legal in Michigan and they have already been discharged,
the Court of Appeals wonders how the teachers could have
a reasonable expectancy of continued employment.

Rockwell vy. Crestwood School District, 393 Mich 616
(1975); U.S. App pending, deals with a similar situation.
There teachers went on strike and the School Board ter-
minated the entire faculty. The teachers in Rockwell, supra,
were covered by the Michigan Teacher Tenure Act, MCL
38.71 et seq., and therefore the Michigan Supreme Court
incidentally found that the teachers had a property inter-
est in continued employment and were entitled to due pro-
cess protections. The Michigan Supreme Court also held,

20

that by striking, the teachers did not cease to be em-
ployees.*® Their employment could only be terminat-
ed in accordance with the procedures set forth in
Section 6 of PERA. 393 Mich at 635.

16 See School Dist. for the City of Holland v. Holland Edu-
cation Association, 380 Mich 314; 157 NW 2d 206 (1968). If
the employment relationship is severed when an employee strikes,
arguably there would be no governing law. The PERA, in
terms, governs only relationships between public employers and
their public employees.

Under the NLRA, a striking employee remains an ‘em-
ployee’ for purposes of the act and remains protected against
unfair labor practices. NLRB v. MacKay Radio & Telegraph
Co., 304 U.S. 333, 345; 58 S. Ct. 904; 82 LEd. 1381, 1390 (1938).

As employees the teachers were entitled to all the rights,
privileges and protections they were entitled to before
the strike. Their preperty interest, which clearly existed
before the strike, either by virtue of their reasonable ex-
pectancy or by the day-to-day agreement still in existence
at the time the strike began, or by the fact that mandatory
subjects of bargaining i.e, the Security of Kmployment
provision, continue even though the collective bargaining
agreement has expired, continued through the strike and
the termination of the faculty.

Caramico v. Secretary of the Department of Housing and
Urban Development, 509 F.2d 694 (2d Cir. 1974) provides
an analogous situation. In Caramico, plaintiffs are or were
non-owner occupants of two to four family dwellings located
in low income areas of Brooklyn, New York. Their mortg-
ages were insured by the FHA. Plaintiffs were evicted from
their dwellings and brought suit in the Federal Court under
the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, 42 U.S.C. Sections 4601
et seq. On appeal, the Federal defendants raised the issue

21

of whether the occupants of the houses, even though not
entitled to Relocation Act assistance, nevertheless have
a due process right to participate in some way in the de-
cision of the FHA not to waive its general requirement
that the buildings be delivered unoceupied. 509 F.2d at
699.

The Court of Appeals found that even though plaintiffs’
leases had run out and their status as occupiers of the
dwellings had been foreclosed “y the State Court pro-
ceedings, the plaintiifs had a property interest cognizable
by the Fourteenth Amendment. The decision was based
on the fact that plaintiffs had resided in the dwellings for
a substantial time period. In the instant case, the Court
of Appeals found that the contract giving teachers a pro-
perty interest had been terminated and that PERA did
not provide them with any constitutional rights. However,
the Court refused to look any further. The Second Cireuit
in Caramico, supra, did look further and discovered the
realities of the situation. In the instant case, the Court
of Appeals has failed to make such an analysis and that
failure has lead the Court to its incorrect decision. The
Caramico, supra, case, found a constitutional property
interest based solely on the fact that the individuals had
lived in the dwellings for substantial time periods. In the
instant case most of the teachers have been employed with
Lake Michigan Community College for a substantial time
period. (Appendix C, p. 49). Ergo, by reasoning in
Caramico, the teachers herein also have a constitutional
property interest.

22

D. The Michigan Public Employment Relations Act pro-
vides petitioners with a Fourteenth Amendment prop-
erty interest in continued public employment.

The District Court found that the teachers had a pro-
perty interest sufficient to invoke the Fourteenth Amend-
ment due process protections. Initially, the District Court
found the property interest arose from PERA. (Both
Board of Regents v. Roth, supra, and Perry v. Sindermann,
supra, indicate that a property interest may be granted by
a governing statute.)

In describing PERA, the strict Court stated:

“An overview of PERA reveals that its funda-
mental purpose is to create a balance between the
publie employer and the public employee in the
matter of labor-management relations in order to
foster an equitable adjustment of interests and to
ensure fundamental fairness to all concerned” (Ap-
pendix C, pp. 71-72).

The District Court diseussed the strike prohibition in
PERA and the fact that the employer’s duty to bargain
in good faith is a necessary quid pro quo of that pohibition.
This quid pro quo is offered, says the District Court, in
order that PERA comply with the due process clause of
the Fourteenth Amendment. Otherwise, forbidding public
employees to strike would impose an unconstitutional
burden on them.

The District Court then discusses how PERA governs
labor relations in the publie sector by: (1) giving public
employees the right to organize and engage in lawful con-
certed activities for the purpose of collective bargaining
M.C.L. § 423.209; (2) the Michigan Employment Relations

23

Commission (MERC) having machinery for the purposes
of defining appropriate bargaining units, M.C.L. § 423.213,
and for the selection, certification, and decertification of
of collective bargaining agents. M.C.L. § 423.212 and
§423.214. (Appendix C, p. 73). PERA also provides
for mediation and fact-finding in public employment dis-
putes. PERA also defines certain practices as being un-
fair labor practices, M.C.L. § 423.210, and provides MERC
with jurisdiction to hear unfair labor practice charges.

The District Court also discussed the discipline which
a public employer may impose on striking employees. If
the public employer chooses to discipline an employee for
striking the employer must prove by competent and
material evidence that the employee violated the Act.
M.C.L. § 423.206. As the District Court noted, “. . . the
presumption of illegality is removed for the purposes of
and hearing, .. .”. (Appendix C, p. 77).

The District Court further notes that public employees
are still public employees under PERA regardless of
whether there is a collective bargaining agreement in force
or they are on strike. Citing Garden City v. Labor Media-
tion Board, 358 Mich 258 (1959); School District of the
City of Holland v. Holland Education Association, 380
Mich 314 (1968). Also, the Court notes, all parties agree
that PERA applies te this matter, which clearly is the case.
Thus, the Board is required, and indeed did offer, to hold
Section 6 termination hearings pursuant to PERA. Speci-
fically the District Court states,

Although before termination a striking public
employee will usually not enjuy all the benefits and
prerequisites of normal employee status, by neces-
sary implication of PERA, he retains a legitimate
entitlement to his job and also an enforceable right

24

to engage in protected concerted activities. M.C.L.
§§s. 423.209, 423.210, 423.216. (Appendix C, p. 89).

Put more simply the public employee's termination for
striking is contingent upon several things. The termination
is not final or perfected until the public employer holds
a hearing (if requested by the employee) within ten days
of the request. The determination of a violation of PERA
by the public employer must be supported by competent,
material and substantial evidence on the whole record.
Further, the employer’s decision must be made within ten
days of the hearing. Only after these steps have been taken
can the termination of the public employee for striking
be perfected.

In recent cases decided under the Roth-Sindermani
standard the question appears to be whether, pursuant to
the employment relationship, the employment is termin-
able at will. There must be something which restricts the
employer’s right to terminate the employee. That is not
to say that the public employer cannot terminate the em-
ployee, but rather, the employee must be terminated for
cause and/or terminated pursuant to some existing pro-
cedure.

Fourteenth Amendment property interests have been
found in various situations. In Young v. United States,
498 F.2d 1211 (5th Cir. 1974), the Court found that an
architect employed by the Army had a Fourteenth Amend-
ment property interest in his employment since the rules
and regulations of the Army and Air Force provided that
an employee may be discharged only for specific reasons.
A Fourteenth Amendment property interest was also found
by the Seventh Cireuit in T. A. Moynahan Prop., Inc. v.
Lancaster Village Corp., 496 F.2d 1114 (7th Cir. 1974).

ee ee

® wt

25

In that case the employee had a contract with the public
employer which provided that it could be terminated with
thirty days notice. The Court felt that in spite of this
provision the employee had a protected property interest
since the contract was for a fixed term and contained the
reasons for which it could be terminated.

Arnett v. Kennedy, 416 U.S. 1384 (1974), decided by the
Supreme Court, presents a situation similar to this case.
In Arnett a non-probationary employee in the competitive
Civil Service, was dismissed from his position in the Office
of Eeonomic Opportunity (O.E.0.) for allegedly having
made recklessly false and defamatory statements about
other O.E.0. employees. The Lloyd-LaFollette Act, 5 U.S.C.
§ 7501 (1970), provides that employees of the Civil Service
of the United States shall be removed only for cause and
that Act sets up the procedure under which removal may
be accomplished.

The main issue in the case was whether the procedure
provided comported with due process requirements. Be-
fore deciding this i issue the Justices felt compelled to decide
if the employ ee had a Fifth Amendment property interest.
And, although Arnett was a plurality opinion, each of the
nine Justices agreed that the employee had a Fifth Amend-
ment property interest entitled to due process protections.
(Obviously, Fifth Ainendment due process was in question
since the Federal Government was involved in that case.)

Justice Rehnquist's opinion joined by the Chief Justice
and Justice Stewart more or less assumed that the Fifth
Amendment property interest existed. Justice Marshall’s
opinion joined by Justice Douglas and Brennan stated it
thusly :

We have already determined that a legitimate
claim of entitlement to continued employment ab-

26

sent ‘sufficient cause’ is 2 property interest requiring
the protections of procedural due process. (Citing
Roth and Sindermann.) Thus there can be little
doubt that appellee’s tenured government employ-
ment, from which he could not legally be dismissed
except for cause, must also be a property interest
for the purposes of the Fifth Amendment. 416 U.S.
at 209.

In Justice Powell’s concurring opinion joined by Justice
Blackmun, the employee’s property interest was defined
as follows:

The federal statute guaranteeing appellee con-
tinued employment absent ‘cause’ for discharge con-
ferred on him a legitimate claim of entitlement
which constituted a ‘property’ interest under the
Fifth Amendment. 416 U.S. at 166.

PERA provides similar protections. Although the Act
does not govern the total employment relationship, it does
govern the rights of employees to join and assist unions
and to engage in lawful concerted activities. In other
words, PERA governs the labor-management relations
aspect of the employment relationship. Thus, PERA would
come into force when an employee is terminated for engag-
ing in concerted activities as opposed to being terminated
for reasons related to his competency, ete. PERA pro-
vides that a public employee may be disciplined for en-
gaging in concerted activities only if the activities are
legal. M.C.L. § 423.209, § 423.210, and § 423.206. Thus,
PERA gives the public employee the right to engage in
concerted activities in relation to his/her employment. The
employee may be terminated for engaging in these acti-
vities only if they are illegal and such termination can only
be accomplished by following the statutory procedure. The

a

27

statute gives public emplovees the right not to be terminat-
ed for striking, unless a hearing is given (if requested)
and a finding of violation of the law is supported by com-
petent, material and substantial evidence. (It has been
held that whether an employee has or does not have a right
to a hearing under state law is persuasive on the issue of
the existence of a Fourteenth Amendment property in-
terest, but not conclusive. Adams v. Walker, 492 F.2d 1003
(7th Cir. 1974].). This right given by statute can only be
taken away by the public employer if that employer com-
plies with the due process protections of the Fourteenth
Amendment.

The Court of Appeals’ attitude shows a disregard of the
rights of the individual teacher. The Court fails to com-
prehend the true situation involved in this case. It holds
by implication that in a strike situation, all teachers lose
their property interests in continued public employment.
The Michigan Supreme Court contradicted this view in
Rockwell v. Crestwood School District, 393 Mich 616
(1975); U.S. App. pending. The Supreme Court found that
even though the teachers were striking in violation of See-
tion 6 of PERA, they were still employees, “and therefore
their employment could only be terminated in aecordance
with ‘he procedures set forth in Section 6 of PERA.”
393 Mich App at 635. Section 6 allows discipline or dis-
charge for one cause, that cause is for strikimg in violation
of PERA. PERA, then, falls within the definition of a sta-
tute conferring a legitimate claim of entitlement which
constitutes a eonstitutionally recognized property interest
as provided by the opinions of Justice Marshall, joined by
Justices Douglas and Brennan, and of Justice Powell,
joined by Justice Blackmun in Arnett v. Kennedy, 416 U.S.
134 (1974). See also Indiana State Employees Assoc. Inc. v.
Boehning, 511 F.2d 854 (7th Cir. 1975) ; U.S. App. pending.

28

E. The Petitioners were deprived of liberty, and therefore
were entitled to the due process protections of the Four-
teenth Amendment.

Before the Court ef Appeals, respondents argued that
the teachers were not deprived of liberty within the mean-
ing of the Fourteenth Amendment, and for that reason they
were not entitled to due process protections. “The due
process concept of liberty recognizes two particular in-
terests of a public employee, namely, (1) protection of his
good name, reputation, honor and integrity and (2) his
freedom to take advantage of other employment opportuni-
ties.” Lipp v. Board of Education of the City of Chicago,
470 F.2d, 802, 805 (7th Cir. 1972).

There is no question but that the employees in this case
lost their freedom to take advantage of their employment
opportunities. The issue is whether being terminated for
striking was the cause of this loss of freedom. In their
argument to the Court of Appeals, respondents said no,
because the termination for this reason, striking, is not
a ** badge of infamy” as is spoken of in Board of Regents v.
Roth, supra. However, the respondents overlooked one
factor. The teachers’ dismissal was for violation of the
law and that is a very serious charge. How many of the
teachers were not hired by new employers because of being
dismissed for striking is unknown. Other reasons such
as age may have been given since they are more convenient.
Further, because of the job market, many teachers have
not even had the opportunity of being turned down.

In Hortonville Education Association vy. Hortonville
Joint School District. 66 Wise 2d 629, 225 NW 2d 658, 88
LRRM 3075 (1974); cert. granted 44 U.S.L.W. 3200, Octo-
ber 6, 1975, the Wisconsin Supreme Court dealt with an
identical fact situation. The teachers of the Hortonville

29

Joint School District had engaged in a work stoppage in
violation of the state law. The teachers were discharged.
The law suit was commenced to declare the action of the
Board null and void and for reinstatement of the teachers.
Two of the issues involved were (1) whether the teachers
had a property interest in continued employment and, (2)
whether the teachers were deprived of liberty. The Wis-
consit Supreme Court answered both questions in the
affrmative. In regard to the second issue, the Court
stated:

“In Roth, there was no stated reason for the non-
tenured teacher not being re-hired. In the instant
case at bar, however, the stated reasons were two:
(1) The teachers had breached their contracts, and
(2) they had engaged in a strike contrary to Wis-
consin law. It is apparent that such charges could
detrimentally affect an individuai’s reputation in
the labor market and thereby significantly under-
mined his opportunities for reemployment. Due
process requires a notice and hearing and an op-
portunity for the teachers to clear themselves of
such charges. 88 LRRM at 3083.

Although the Hortonville case is currently being considered
by the United States Supreme Court, this issue was not
one of the questions presented to the Court. The Court of
Appeals should have applied the same sound reasoning to
the instant ca:

Although proving that the teachers had not been hired
to new jobs because of being terminated for striking is
a very difficult task, another factor is present. The legis-
lature has chosen to provide hearings for public employees
disciplined for striking. MCL § 423.206. There is no other
situation in which the legislature provides for a hearing

30

for public employees who are not covered by any other act
such as the Teacher Tenure Act. (And the Tenure Act
only provides for hearings when the charges of the school
board regard the character of the teacher’s professional
services). Clearly, the legislature singled out striking em-
ployees for special treatment because they, the striking em-
ployees, are being charged with a violation of the law.
Obviously, the legislature, in drafting PERA, was aware
that the liberty of an individual charged with violating
the Act was as much at stake as those charged with the
violation of other laws. Therefore to protect the liberty
of public employees disciplined for striking in violation
of Section 6 of PERA, the legislature intended to, and did
so, provide employees with due process protections which
must be granted by the government before terminating
these employees.

Il.

THE COURT OF APPEALS ERRED IN HOLDING THAT,
EVEN THOUGH BIASED. THE BOARD OF TRUSTEES COULD
HOLD TERMINATION HEARINGS WHICH MEET MINIMUM
CONSTITUTIONAL STANDARDS.

The Court of Appeals stated that it had an alternative
ground for its decision. Under ordinary circumstances, the
Board of Trustees would be the body to hold the Section 6
termination hearings. The District Court held, however,
that the Lake Michigan Community College Board of Trus-
tees was biased and therefore could not be the impartial
tribunal which due process requires. Ergo, the Board could
not hold Section 6 hearings.

The District Court found “that the College hoped to
break the Union and that the Board’s intransigence on the
issue of salaries was ‘so provocative that it must be charac-

ONT es «etre mm

31

terized as being violent, if not barbaric.’” (Appendix
C, p. 43).

The Sixth Cireuit felt that even if the Board was biased
that fact would have no bearing on the Section 6 hearings.
The Court of Appeals made a glaring error. For the pur-
poses of that argument the Court of Appeals assumed that
the teachers had a property interest in continued employ-
ment, and therefore were entitled to due process pro-
tections.

One of the due process protections is an impartial de-
cision maker. Ward v. Village of Monroeville, 409 U.S. 57
(1972); Morrissey v. Brewer, 408 U.S. 471 (1972). For the
Court to gratuitously decide that an impartial decision-
maker is not required to hold the hearing makes the due
process protections, if not useless, then ineffectual. The
Court states that “there will be no difficult factual or legal
questions for the Board to decide.” (Appendix F, p.
125). Whether that is true or not is arguable. However,
even if it is true, there are still factual and legal questions
to decide and allowing a biased tribunal to decide them
makes a mockery out of the due process protections. The
net step is to say that since the factual and legal ques-
tions are simple and we need not have an impartial de-
cisionmaker, why not dispose with the hearing altogether
since we already know what decision the biased decision-
maker will make.

A similar problem was dealt with by the United States
Supreme Court in Ward v. Village of Monroeville, supra.
In that case, the respondent argued that it did not matter
if the hearing tribunal was biased since any unfairness
at the trial level could be corrected on the appeal and trial
de novo in the County Court of Common Pleas. To this

argument, the Supreme Court responded by stating,
See Appendix H, page 128.

32

Nor in any event may the State’s trial court pro-
cedure be deemed constitutionally acceptable merely
because the State eventually offers Defendant an
impartial adjudication. Petitioner is en (62)-titled
to a neutral and detached judge im the first m-
stance (Emphasis supplied) 409 U.S. at 61-62.

If the teachers in the instant case have a property in-
terest in continued employment, based upon Ward v. Vu-
lage of Monroeville, supra, it is clear that the Board of
Trustees cannot hold the termination hearings. The hear-
ings must be held by a neutral and detached judge espe-
cially where, as here, review of the decision of the tribunal
is not de novo. MCL § 423.206.

Ii.

THE COURT OF APPEALS ERRONEOUSLY REVERSED
THE FINDINGS OF FACT OF THE DISTRICT COURT WITH-
OUT FINDING THE LOWER COURT’S FINDINGS CLEARLY
ERRONEOUS, ERGO, THE COURT OF APPEALS MUST BE
REVERSED.

It also appears that the Court of Appeals disagrees with
the District Court’s finding of bias on the part of the Board
of Trustees. The Court of Appeals states:

The Board’s sole objective in conducting the
PERA hearings is to ensure that innocent teachers
were not mistakenly identified as stikers, and there
is nothing in the record to indicate that the Board
will not perform this duty fairly. (Appendix F,
p. 126).

The District Court, however, found the record replete
with instances which indicated that the Board would not

Ere TO ee

33

perform the Section 6 hearings fairly. By way of example,
the District Court stated:

“The Court has found, supra, that in early Febru-
ary, 1975, the College acted with the ultimate goal
of breaking the Union and with the immediate goal
of provoking the strike which began on February
15, 1973. After the strike began, the College em-
barked upon a program to finally discharge the
stiking teachers as a part of the plan to break the
Union, and the College has not deviated from this
course since.” (Appendix C, p. 96).

It is clear that the two courts viewed the record quite
differently. As noted above, the Court of Appeals may
reject the factual findings of the District Court only if
those findings are unsupported by the evidence or clearly
erroneous. Fed. R. Civ. Pro. 52(a). The same standard
applies to any factual inferences drawn from undisputed
facts. United States v. State of Florida, 482 F.2d 205 (5th
Cir. 1973). The exact wording of the clearly erroneous stan-
dard is not important herein since the Court of Appeals
never invoked that standard nor any other in reversing the
District Court’s findings of fact. The Court of Appeals
merely ignored any findings by the District Court which it
did not agree with. This the Court of Appeals may do. Bloch
v. Bloch, 473 F2d 1067 (3d Cir. 1973); Baggett v. Richard-
son, 473 F2d 863, (Sth Cir. 1973).

The District Court found that the Board of Trustees
was biased, and therefore could not hold the Section 6
hearings. The Court of Appeals finds that although biased,
that fact would not prevent the Board from performing
fairly its duty under Section 6. The Court of Appeals tried
to explain away the District Court’s holding on bias with
Rockwell v. Crestwood School District, 393 Mich 616

o4

(1975). That case was decided after the District Court
issued its Opinion and explained what occurs at a Section
6 hearing.

The Michigan Supreme Court in Rockwell, supra, merely
stated the obvious as to the proceedings under Section 6.
It cannot be assumed that the District Court would change
its decision and rule that the biased Board could constitu-
tionally hold the Section 6 hearings based upon Rockwell,
supra. The District Court found that the Board could not
fairly hold the hearings while the Court of Appeals found
that the biased Board could fairly hold the hearings. Thus,
there are two diametrically opposed findings of fact. The
Court of Appeals improperly rejected the District Court’s
finding without holding that it was clearly erroneous as
required by Fed. R. Civ. Pro. 52(a). Consequently, the
Court of Appeals erred and must be reversed.

CONCLUSION

For the foregoing reasons this Petition for a Writ of
Certiorari should be granted.

FIEGER, GOLDEN & COUSENS

By Bernard J. Fieger
and

Mark H. Cousens

Counsel for Petitioners
19390 West Ten Mile Road
Southfield, Michigan 48075
(313) 355-5555

APPENDIX A
ARTICLE X

SECURITY OF EMPLOYMENT

Section 1. Probationary Status.

(a)

(b)

(¢)

(d)

All faeulty members shall be on a probationary
status during the first two years of their employ-
ment. This probationary period may be extended for
one additional year at the option of the Board. A
faculty member whose probationary period has been
extended, shall be furnished with a definite written
statement of deficiencies which necessitated such ex-
tension.

Annual contracts for probationary faculty members
will be renewed if both the faculty member and
the College desire to continue the relationship. The
Board sha!l indicate its desire in writing to the pro-
bationary faculty member 90 days prior to the ex-
piration of his existing contract or by Febuary 15,
whichever occurs first.

Upon request, the reasons for non-renewal of a Pro-
bationary Status Teacher’s contract shall be dis-
cussed with the teacher, it being understood that the
basis for any non-renewal, whether or not such basis
is discussed, shall not be subject to the grievance
procedure.

(pon suecessful completion of the probationary per-
iod, the faculty member will be granted a “Full Sta-
tus” contract.

Section

9

36

2. Full Status.

(a) Definition:

1. The person attaining full status will be eligible

to receive a continuing contract written *%s a per-
manent document which will guarantee that the
services of the faculty member will be termin-
ated only for just cause, except in the case of re-
tirement for age, or under extraordinary circum-
stances.

A. By just cause is meant cross immorality, in-
efficiency or incompetency, conviction of a fel-
ony, violation of contract or refusal to per-
form contractual duties and responsibilities.

B. By extraordinary circumstances is meant acts
of God, wars, insurrection or other situations
which limit and which restrict the full oper-
ation of the College or the full operation of
the division or area of assigned work of the
faculty member, including substantial reduc-
tions in student enrollment.

(b) Procedure for terminating the contract of an in-
structor who has received full status:

Notice of the intention to terminate the contract
must be furnished a faculty member on or before
the start of the second semester of the school
year in which his services are to terminate, un-
less the act which gives rise to the decision to
terminate occurs at a later date, in which case
the faculty member must be given not less than

37

90 days notice or pay in lieu thereof. A detailed
written statement of the reasons for termination
must accompany this notice.

2. Within 20 days after receipt of this notice the

faculty member may request a hearing before the
Faculty Committee on Security of Employment.
This Committee shall be elected by the faculty
members holding full status, and shall be com-
prised of three members, one elected for one year,
one for two years, and one for three years. Af-
ter the first year, and every year thereafter, one
member of the committee shall be elected for a
three-year term. This committee shall hold a
hearing, obtain test'mony and make a report to
the President with their recommendations and
supportive statements within 10 days after the
conclusion of the hearing. Recommendations must
have majority support.

3. The President shall review the recommendations

so made. Should he take exception to them, he
shall reduce to writing his exceptions and rea-
sons therefore and forward them within 10 days
to the members of the Faculty Committee on Se-
curity of Employment and to the faculty mem-
ber.

4. Within 20 days after receipt of the President’s

qQ

report the faculty member may request a hear-
ing before the President. This request shall be
presented to the President or his designee in
writing.

Such hearing shall be held within 20 days after
the President or his designee has received the
request for the hearing.

38

6. The President shall furnish the faculty member

his written decision of the results of the hearing
within seven (7) days following the conclusion
of the hearing.

. If the faculty member does not accept the Presi-
dent’s decision, he may request a hearing before
the Board of Trustees. This request shall be made
in writing to the Chairman of the Board of
Trustees and the President of ihe College within
five (5) days of the receipt of the President’s de-
cision.

. The hearings before the Board of Trustees shall
be held within fifteen (15) days of such request
for appeal. The faculty member and/or College
may be represented by counsel and may call such
witnesses as they each deem necessary. At the
option of the faculty member the hearing may
be:

A. A closed hearing,

B. a hearing with a maximum of three represen-
tatives of the faculty in attendance,

C. an open hearing.

. The decision of the Board of Trustees, by major-
ity vote shall be final and binding where the
grounds for contract termination are based on
teaching incompetency or the failure of a faculty
member to perform satisfactorily his teaching
duties. In all other cases, including the question
of whether the Board based its decision on the

39

above grounds, the decision of the Board of Trus-
tees to terminate the contract of a teacher on
full status shall be subject to arbitration proceed-
ings as provided in Article V of this Agreement,
upon the written request of the teacher. Such re-
quest must be filed with the President of the Col-
lege within seven (7) calendar days following the
receipt by the teacher of the written notice of
decision by the Board of Trustees. Pending final
decision on a termination, the faculty member
may be suspended from all duties with pay.

APPENDIX B
Jt. Ex. 18
August 25, 1972

Mr. Edward Shaffer

Lake Michigan College Federation of Teachers
Lake Michigan College

Benton Harbor, Michigan 49022

Dear Mr. Shaffer:

This letter will confirm my telephone conversation with
you regarding the College’s position on the status of the
Master Agreement.

The 1970-72 Master Agreement expired on August 12,
1972.

The Board of Trustees is willing to honor those provi-
sions of the Agreement presently being negotiated which
have been agreed to and signed by both parties. This would
also apply to any other provisions signed and agreed to
prior to September 8, 1972.

40

My understanding is that mediation is still on. I have
talked to Mr. Wilkes, perhaps you should also.

The College is sincere in its wish to negotiate an early
settlement of the new Master Agreement.

Sincerely,

/s/ William J. Niemi, Jr.
Vice President/Business Affairs
WJN :jnt

The above offer to implement the agreed upon provisions
is hereby accepted.

September 11, 1972 5:35 P.M. /s/ William J. Niemi, Jr.
September 11, 1972 5:37 P.M. /s/ Edward S. Shaffer

41

APPENDIX C
OPINION

United States of America
In the District Court of the United States
For the Western District of Michigan
Southern Division

(Filed September 27, 1974)

Lake Michigan College Federation of )
Teachers and Edward Shaffer, indiv-
dually and as representative of other
individuals similarly situated and too
numerous to conveniently be here set
forth,

Plaintiffs, $ K-49-73 C.A.
Vv

Lake Michigan Community College, a
public education institution estab-
lished under the laws of the State of
Michigan, et al.,

Defendants.

This case arose out of an employment dispute between
Lake Michigan College (hereafter referred to as the Col-
lege) and certain of its employees, most of whom were
teaching faculty represented by the Lake Michigan Col-
lege Federation of Teachers, their certified bargaining
agent (hereafter referred to as the Union). Although this
case was originally begun as a class action, the pleadings
were amended so that the plaintiffs are the Lake Michigan
College Federation of Teachers and the named individuals,

42

all of whom were the subjects of disciplinary action taken
by the College as a result of a work stoppage which began
on February 15, 1973. The defendants are the Lake Michi-
gan Community College, a publicly created and financed
two vear junior college; the individuals who were members
of the College’s Board of Trustees, the governing body,
when the dispute arose; and the President of the College,
the institution’s chief executive officer. The Attorney Gen-
eral of the State of Michigan was admitted as an Inter-
venor Defendant.

The gravamen of the amended complaint’ is that certain
actions taken or proposed to be taken by the defendants
principally during February, March and April of 1973 in
connection with discharge proceedings violated or would
violate the Fourteenth Amendment due process rights of
the plaintiffs to notice and hearing by an impartial tribu-
nal before the deprivation of their protected interests by
the defendants.* The plaintiffs are seeking reinstatement
with damages incident to the reinstatement, and further
declaratory and injunctive relief with respect to the pro-
posed form of the discharge hearings. This case falls under
42 USC See. 1983, and this court has jurisdiction under 28
USC Sees. 1343 (3) and (4), and 28 USC Sees. 2201 and
2202.

1The amended complaint is adequate to give the defendants no-
tice of the nature of the charges against them.

2 Although the plaintiffs might have alleged that the defendants’
actions infringed their First and Fourteenth Amendment rights of
freedom of association, they did not raise this issue. The major is-
sues in this case thus relate exclusively to procedural due process.

43
I.

Before discussing the legal merits of this ease, the court
must make a comprehensive survey of the facts, review of
the relevant Michigan public employment relations law,
and survey the procedural history of this case to date.

A.

Because of the truncated jurisdiction of this court and
the nature of the issues upon which this court may rule, it
is necessary to make an especially thorough examination
of the facts in this case, and to assess in particular the
course of bargaining between the College and the Union
during 1972-1973.°

Shortly after this case was filed, the court, after a hear-
ing during which it was informed of the esesntial facts,
issued an Opinion and Temporary Restraining Order. Al-
though the court has since received a much greater volume
of evidence, enabling a more detailed view of the case, this
evidence has convinced the court that its original asses-
ment of the case was correct. In particular, the court is
convinced, as it said in its original Opinion, that the “in-
transigence” of the Board on the issue of salaries was “so
provocative that it must be characterized as being violent,
if not barbaric.” The Opinion is reproduced as Appendix
A, and is incorporated herein by reference.

Lake Michigan College was originally established as the
Junior College of Benton Harbor by the Benton Harbor
Board of Education in 1946. At a special election in 1963,
the voters approved the creation of the Community Col-
lege District of Berrien County, Michigan, with a separate
Board of Trustees to manage the institution. Voters also
approved a tax levy for twenty years from 1964 to finance

8 Jurisdiction and the precise legal issues raised by this cose are
fully discussed below.

44

the school. At this time, the name was changed to Lake
Michigan College.

While the record does not show the date on which the
Lake Michigan College Federation of Teachers (abbre-
viated in the record as LMCFT) was certified as the bar-
gaining representative of the faculty,’ it does reveal that
the first collective bargaining agreement went into effect
during the Fall term, 1967,° following a six-week strike by
the faculty which was settled by voluntary arbitration.

At the trial of this cause, Dr. James L. Lehman, who
had assumed his position as President of the College in
July 1967, just before the strike, indicated by his expres-
sion and manner that the College authorities had never
fully accepted many of the terms of the collective bargain-
ing agreement which had been “imposed” upon the Col-
lege by the arbitrators in the Fall of 1967.° This intense
dissatisfatcion with the results of the strike and with the
whole principle of collective bargaining contributed to the
hostility which the College demonstrated toward the Union
and the teachers, and is evidence that the College had con-
cluded that the second strike would be the last.

Following the expiration of the 1967-68 agreement, new
agreements were reached and implemented in 1968-69,

*“Faculty” and “teachers” are terms used throughout this opin-
ion to connote members of the bargaining unit, even though the unit
contains some non-teaching personnel.

5 Jt. Ex. 22.

6 Trial Tr. at 238-240. The resentment at the infringement of
management prerogatives which resulted from the 1967 arbitration
perhaps accounts in part for the categorical rejection of the Union’s
offer to submit unsettled issues to arbitration early in February 1973.

)

1969-70, and 1970-72." The number of agreements indicates
that the parties have been almost constantly negotiating
or preparing for negotiations since the stormy beginning
in 1967. With important issues thus amost always joined,
a stable union-management relationship never developed.

Although the 1970-1972 collective bargaining agreement
was not scheduled to expire until August 1972, the Union
initiated the process of bargaining toward a new contract
in December 1971. On December 13, the Union formally
wrote the College as follows :*

“In accordance with Article XVIII of the Master
Agreement between the Board of Trustees of Lake
Michigan College and the L.M.C. Federation of Teach-
ers, we hereby notify you of our intention to begin
negotiating a successor agreement to the present Con-
tract. Our negotiating team has been selected and it is

7 The collective bargaining agreements are in evidence as follows:
Jt. Ex. 21, 1968-69; Jt. Ex. 20, 1969-1970; Jt. Ex. 16, 1970-72. The
last agreement was not for a fuil two years, but went into effect on
December 28, 1970, and expired August 12;1972.

SIn Pl. Ex. 2, Ex. 13. Pl. Ex. 2 is a series of documentary ex-
hibits submitted during the hearings before the Michigan Employ-
ment Relations Commission Trial Examiner on the plaintifis’ unfair

labor practice charge.

Pl. Ex. 2 is among a set of exhibits, Nos. 1-9, offered by the
plaintiffs relating to the course and content of bargaining between
the parties during 1972-1973, and relating also to proceedings before
or under the auspices of M.E.R.C. The defendants have stipulated
to the authenticity of these exhibits, but not their relevance. The
court finds that exhibits relating to these matters are relevant to this
suit. It is elementary that the resolution of procedural due process
issues requires a preliminary finding and careful analysis of all the
significant elements of a given sitaution. See, e.g., Cafeteria and
Restaurant Workers v McElroy, 367 U.S. 886, 895 (1961). Cor-
relatively, since justice, or the lack of it, inheres in specific situations,
all the circumstances of a case must be known to enable the court to
invoke a central value of the Due Process Clause, fundamental fair-
ness.

46

our desire to begin negotiations prior to the stated
date of February 15, 1972, in order to conclude an
agreement early. We wish to point out that [it] is
possible to begin before Febuary 15 and that the con-
tract does not prohibit it. We urge your team to pre-
pare your position as soon as possible so we can be-

gin.”

The Union submitted a substantial number of proposals in
February 1972, and had submitted all its proposals by
April 13.° This early action by the Union was responsibly
designed to ensure that there would be ample time to com-
plete the new agreement by the beginning of the 1972-73
academic year."® In fact, as appears more fully below, the
unreasonable demands and intransigence of the College
prevented any such agreement from being reached.

It is important to note the general economic and social
conditions within which the bargaining took place. It was
a period of extraordinarily high inflation, and the Presi-
dent had imposed a ceiling of 5.5% on wage increases.
Many families of modest income found it very difficult to
maintain a decent standard of living.

During the fall of 1972, teacher strikes increased as
public school administrators resisted pay raises which
teachers required to merely stay even with inflation. Al-
though there had been teacher strikes in 11 Michigan pub-

®In Pl. Ex. 2, Ex. 20.

10QOn June 1, 1974, Michigan Governor William G. Milliken
urged a group of school administrators, school board members, and
teachers from around the state to undertake good faith bargaining
as early as possible to avert school strikes in the fall. Grand Rapids
Press, June 2, 1974, p. 1. The court observes that the Union in this
case did undertake early good faith bargaining, but the College did
not reciprocate.

—s

47

lie school and college systems in 1971-72, there were 17
such strikes in 1972-73. All of the 1972-73 strikes involved
contract renewals."'

A substantial number of non-vital issues had been re-
solved by early August 1972. At this time the College re-
quested the services of a mediator to be appointed by the
Michigan Employment Relations Commission pursuant to
the Michigan Public Employment Relations Act.’* A med-
iator was appointed, and the parties met with him.

The collective bargaining agreement expired on August
12, 1972, but the teachers returned to work at the begin-
ning of the 1972-73 school year under a “day-to-day un-
derstanding” with the College. By the terms of the under-
standing, the teachers would work under the provisons
of the expired 1970-72 collective bargaining agreement, ex-
cept that the new contract terms which had been agreed
upor before September 8, 1972, would be implemente.”*

11 State of Michigan, Department of Labor, “Annual Report,
Fiscal Year 1972-73,” at 166, 167, Tables 8, 10 (1974).

12M.C.L.A. Sec. 423.201 et seq., M.S.A. Sec. 17.455(1) et seq.
For convenience, the court will refer to the statutes in effect at the
time this case arose as the Public Employment Relations Act, on
P.E.R.A. M.E.R.C, is the administrative agency which has primary
authority over labor relations in Michigan. P.E.R.A., M.E.R.C., and
Michigan’s employment relations policies are discussed more fully
below.

13 Jt. Ex. 18. The parties have stipulated that the agreement
was a “day-to-day” understanding, Jt. Ex. 23, No. 2, but they have
not stipulated as to the meaning of “day-to-day.” The defendants
have argued that since the understanding was without a stated term,
it was therefore terminable at will, by either party. See, eg., Trial
Tr. at 46. However, the court finds that the understanding was in-
tended to extend at least to the end of the 1972-73 school year. It
was day-today only in the sense that it could be replaced by a full
collective bargaining agreement.

48

One of the sections of the old contract which was continued
was a provision whereby the Union and the faculty agreed
not to strike and the College agreed not te lock out dur-
ing the term of the agreement.”

On August 17, 1972, the Union requested fact-finding
pursuant to P.E.R.A. A factfinder, Mr. J. Warren Kardley,
of Grand Rapids, Michigan, was appointed. The first meet-
ing with the fact-finder was held on October 17, 1972, but
was adjourned to November 13, 1972, to give the patries
an opportunity to bargain further. By the time the fact-
finder’s report was issued on January 11, 1973,"° the par-
ties had reached agreement on all but three issues, each
of which was examined by the factfinder.

The three issues on which the parties were unable to
agree were the salary schedule, the duration of the con-
tract, and the number of weeks’ work scheduled for the
assistant librarians. The latter issue was of secondary
importance. The issues of the salary schedule and the dura-
tion of the contract were closely related, and were the sub-
ject of major difficulty.

14Jt. Ex. 16, Art. XVI. The no-strike, no-lockout provision reads
as follows:

“STRIKES AND LOCKOUTS

Section 1. The Federation agrees it will not instigate, aid, or
condone work stoppages, strikes, shutdowns or other interruptions
of work during the term of this Agreement.

It is further agreed that no faculty member shall engage in a
strike or work stoppage in any form during the term of this Agree-
ment.

The College agrees that there shall be no lockouts during the
term of this A. reement.”

15 The “Factfinder’s Opinion and Recommendations (hereafter re-
ferred to as “Factfinder’s Opinion”), is found in Pl, Ex. 2, as Ex. 11
submitted in the M.E.R.C. unfair labor practice hearings.

49

Since the first collective bargaining agreement of 1967,
each of the Lake Michigan College faculty members had
been paid according to where he (or she) fell upon a nego-
tiated salary schedule referred to as the “grid.” The grid
set forth a schedule of salary increments along horizontal
and vertical axes. An increment on the horizontal axis
was attained through the acquisition of an additional de-
gree or of a stated number of additions! educational cred-
its by the individual teacher. The vertieal axis was graded
by the nwmber of years’ service the teacher had given to
the institution, up to a stated maximum. Progression on
this vertical axis was automatic, so the salary increase was
in the nature of a longevity increment. The maximum dol-
lar amount possible on the grid was reached at eleven
years’ service for a person with an M.A. Degree, and at
fourteeu. years’ service for a person with an M.A. Degree
plus thirty additional approved educational credit hours.”
The record does not show the number of faculty members
who had reached the maximum on the salary schedule, but
there was a suggestion that there were “many” faculty
members at the top of the grid during the 1972-73 academic
year.’ In each of the parties’ collective baragining agree-
ments, the whole salary schedule was increased, so that
persons at the top of the scale received increases, and per-
sons who fell within the grid received that which they

16 The basic salary scheme, but not the amounts, remained constant
in all the agreements. See Jt. Exs. 22, 21, 20, 16. The scheme is dis-
cussed more fully in the “Factfinder’s Opinion” at 1-7. A salary grid
of the type used at Lake Michigan College is usual in Michigan com-
munity colleges. Buys, “Collective Bargaining in Michigan Community
Colleges,” 21 Journal of the College and University Personnel Associa-
tion 33, 42 (1970).

17 Tr., Proceedings on Motion to Stay Court’s Order, April 30, 1973
at 15. (Hereafter referred to as “Stay Proceedings.”)

50

would have received under the old agreement for longevity

and additional education, plus the amount of the negotiated
increase.

At the outset, the Union sought a one-year contract,
and the College a five-year contract. Both parties soon
became willing to negotiate a three-year contract, and
this term became the focus of bargaining on the salary
matters until early February 1973.

From the inception of bargaining in the late winter of
1972, the Union, conscious of the relentless presure of in-
flation on its members, demanded a general increase in the
salary scale in accordance with past practices. However,
the Union’s demands were limited to a 5.5% increase, the
amount allowed at the time under the wage and price con-
trols.”*

For about a year, from the winter of 1972 until early
February 1973, the College “stonewalled” on the issue of
salaries. It insisted that the 1971-72 salaries were high
enough. The issue was never the availability of money,
since the College was financially able at all times to pay
all that the teachers requested. Rather, the College stated
that the issue was one of “priorities.” Specifically, the
College insisted that during 1972-73 salaries be frozen at
the 1971-72 levels, with no movement whatsoever on the
vertical longevity axis or on the horizontal educational im-
provement axis of the grid. Tht College further more in-
sisted that in subsequent years of the contract salary in-
crements would be granted only on the 1971-72 scale.

A salary freeze in a time of inflation means a reduction
in real wages. Despite consistent past practices and the

18 Factfinder’s Opinion, at 4-5.

51

institution’s ability to pay, this is what the College de-
manded of the teachers. Moreover, the College demanded
rigid adherence to the 1971-72 scale in the future, what-
ever the inflationary state of the economy. Under the eir-
cumstances, these demands were arbitrary, capricious and
unreasonable.

The College’s tactics of “stonewalling” on the most vital
issue of wages is the modern counterpart of the union-
busting tactics used by employers in the early years after
the passage of the National Labor Relations Act in 1935.
The N.L.R.A. gave employees in most private industry the
right to organize and bargain collectively so as to par-
tially equalize the bargaining power of labor and manage-
ment, to bring peace to the nation’s industries, and to im-
prove wages, hours, and working conditions over the long
run. One tactic employers used to break the unions formed
under the authority of the Act was to simply refuse to
bargain on one or more vital issues.

Similarly, the Michigan Public Employment Relations
Act gave public employees the right to organize and bar-
gain collectively. P.E.R.A. ineluded a no-strike provision,
but a quid pro quo for the prohibition on strikes was an
extra duty on the employer to be fair in bargaining. The
College’s stonewalling tactic was, in light of the parties’
bargaining history and the inflationary economic condi-
tions, a deliberate attempt by the employer to break the
Union, and plainly a disruption of the balance between
employer and employee which P.E.R.A. intended to estab-
lish.

After the hearings on the salary and contract duration
issues, the M.E.R.C.-appointed factfinder, on January 11,

1973, found that the College’s position on salaries was “im-
practical and unrealistic”. Comparing Lake Michigan Col-

a2

lege teachers’ salaries with those of other junior colleges
around the state and with public schools in the local area,
he found that Lake Michigan College salaries w re lower
than some, higher than others, and competitive for the
area. The factfinder recommended the retention of the grid
system and an increase at all levels, in accordance with
past practice, in the amount then established as a maximum
by law, 5.5%. The factfinder also recommended the negotia-
tion of a three-year contract.’® While the Union urged the
acceptance of the factfinder’s recommendations, the Col-
lege rejected them.

After the issuance of the Factfinder’s Opinion, the par-
ties had bargaining sessions on February 2, 7, and 13. Al-
though events moved rapidly during this period, and the
bargaining was complex, the major developments can be
summarized. The Union negotiating team reluctantly pro-
posed to substantially write off 1972-72, and to move al-
most immediately to negotiations concerning 1973-74 and
subsequent years. The Union offered and the Colleges ac-
cepted a one-year contract for 1972-73, with salaries at the
1971-72 level, except that those teachers who had earned
sufficient additional graduate credits would receive incre-
ments on the horizontal seale under the 1971-72 contract.”
However, the faculty voted to reject this proposal.

With the Union and faculty thus split, the College moved
to the attack. It significantly modified its earlier position
by now insisting upon a complete abolition of the vertical
longevity incremental scale, so that teachers would no

19 Id. at 9 ff.
20 In Pl. Ex. 2, Ex. 18.

53

longer be entitled to automatic increases up to the maxi-
mum on the seale simply for serving additional years.”
The College was willing to grant increases on the horizon-
tal education scale, and was also willing to grant for the
immediate future increases “equivalent” to those which
would be called for if the full grid were in effect. However,
in the face of the uncertain and inflationary economic con-
ditions, the principle of the grid was to be done away with
forever, and the teachers were modestly asked to join in
the execution.

By making this offer, the College deliberately drove the
faculty to the wall and the Union to the breaking point.
The College escalated a battle over salary levels into a
war over the grid principle and then offered the Union
a Phyrrie victory (equivalency increases) in the battle in
return for ultimate and total surrender in the war. If the
teachers rejected this latest offer, and the Union did noth-
ing but show up for negotiating meetings, there would be
no salary increase whatsoever and no final collective bar-
gaining agreement for the indefinite future. The Union
would be effectively broken. However, in light of all the
circumstances — the inflationary pressures felt by the
teachers, the adverse faculty reaction to the proposed fore-

21 The defendants have suggested that the abolition of the verticai
longevity incremental scale was not a new principle introduced in
February 1973, but a principle implicit in the proposal for frozen sala-
ries, which was laid on the table in the spring of 1972. However, a
proposal to freeze salaries for a single year is not the same as a pro-
posal to abolish the whole principle of the grid for the future. Before
February 1973, the proposal for frozen salaries was offered in conjunc-
tion with proposals for a five-year or three-year contract, with the 1971-
72 salary grid being in effect for the years after the first. The earlier
proposals thus carried no direct threat to the principle of the salary
grid. Nor, when the Union offered a one-year contract on February 7,
did it contemplate an abolition of the principle of the grid as a basis for
future bargaining.

54

going of the longevity increment; the obvious exasperation
of the teachers with the College’s assault on their secur-
itv; and the number of teachers’ strikes around the state
—the only humanly possible reaction of the teachers was
to strike. And once the strike occurred, the College would

have a public relations and legal advantage, and could
finally break the Union.

The court concludes that under all the circumstances
known to the College at the time, the College’s proposal to
abolish the salary grid must have been and in fact was
made with the ultimate goal of breaking the Union in any
event and with the immediate goal of provoking a strike.

The court also concludes that the attack upon the Un-

ion was the first, substantial, foreseeable, and in fact fore-
seen, cause of the ensuing strike.

On February 14, 1973, the Union filed unfair labor prac-
tice charges with M.E.R.C., alleging that the College had
failed to bargain in good faith. (The original charge was
made more explicit by a Bill of Particulars filed on March
8.) After hearings on these charges on March 19, the
M.E.R.C. Trial Examiner concluded that the College had
committed no unfair labor practices. On appeal, the
M.E.R.C. concurred and dismissed the charges against the
College.”

Meanwhile, on February 15, nearly all of the faculty of
Lake Michigan College began a work stoppage, allegedly
solely to protest the College’s unfair labor practices. Al-
though some College classes remained in session, most of
those taught by full-time instructors did not meet. The

>

22 Def. Ex. 4.
23 Def. Ex. 9.

55

College made several appeals to the striking faculty to re-
turn to work, but most remained on strike.

The College might have gone to court to seek an injune-
tion to end the strike, School District for the City of Hol-
land v. Holland Education Association, 380 Mich. 314, 157
N.W. 2d 206 (1968); see also, Board of Education for the
School District of the City of Detroit y. Detroit Federat-
tion of Teachers, No. 18675 (Mich. Ct. App., Sept 12,
1974), at 5, but it did not do so. The College presented
much evidence in this court as to the harm the strike did
to students and to the operations of the institution. If the
College had been truly concerned about protecting the
students, it would have certainly at least attempted to get
an injunction.

If the College had sought an injunction, it would have
had to convince the court that it had “clean hands”, that
it was not guilty of unfair labor practices or other conduct
which would make it inequitable for the court to enjoin
the strike. School District for the City of Holland, supra,
157 N.W. 2d at 211. Perhaps one reason the College did
not seek an injunction was that it knew that it had deliber-
ately engaged in conduct of which no court could approve.

Certainly, an additional reason that the College did
not seek an injunction was that the Board did not want
one. [f an injunction issued and the teachers returned to
work, then the College’s plan to quickly and finally break
the Union would have been compromised. Conversely, the
fact that the College did not even seek an injunction when
it might have is some indirect evidence of a plan to keep
the striking teachers out.

Instead, the College embarked on a program to finally
discharge the striking teachers so as to finally break the
Union. After the teachers refused to return to work, the

56

College began offering permanent contracts to replace-
ments. The assumption was that the striking teachers were
gone from the College forever.

On February 26, 1973, the Board of Trustees passed the
following Resolution :**

“RESOLUTION

WHEREAS, the Board of Trustees of Lake Mich-
igan College has observed and been informed that sev-
eral faculty members are engaging in a strike for the
purpose of inducing, influencing, and coercing a change
in their compensation and other conditions, rights,
privileges, and obligations of employment, and

WHEREAS, such activities are illegal and prohib-
ited by the State of Michigan’s Public Employment
Relations Act, and in violation of the faculty’s obliga-

24 Jt. Ex. 3. During the trial, the defendants objected to questions
to members of the College Board of Trustees concerning each trustee’s
interpretation of the February 26 Resolution. See, eg., Trial Tr. at
180. The objections were put variously in terms of the best evidence
rule and the parol evidence rule, and summed up in the sentence, “The
document speaks for itself.” Id. These objections were not well taken.
The parol evidence rule is a rule of substantive law which simply does
not apply to restrict evidence concerning the interpretation of Trustees’
Resolutions. See 9 Wigmore, A Treatise on the Anglo-American Sys-
tem of Evidence in Trials at Common Law, Sec. 2400 ff. (3d ed. 1940).
The “best evidence” objection covers a variety of sins. However, there
is no question here as to the content or the authenticity of the Resolu-
tion. It can hardly be objected that a Trustee’s testimony as to his
interpretation of a Resolution is irrelevant, without probative value.

If the Resolution does speak for itself, it does not speak alone. The
court should take and consider probative, trustworthy evidence concern-
ing its proper interpretation. See 3 Id. Secs. 1171-1175. (Chadbourn
ed. 1972.)

a7

tion to provide full, faithful, and proper performance
of their duties of employment,

NOW, THEREFORE, BE IT RESOLVED that the
Board of Trustees of Lake Michigan College termin-
ates such faculty members’ status and employment ef-
fective Monday, March 5, 1973, unless any such faculty
member shall report and resume the full, faithful, and
proper performance of their duties of employment
on or before such date; and

BE IT FURTHER RESOLVED that the Board of
Trustees hereby authorizes the President of the Col-
lege to promptly notify such faculty of this resolution,
and to perform such other acts as may be necessary to
carry it out.

EXECUTED this 26th day of February, 1973.”

The next day, the College, by its President, wrote to
each striking faculty member. The letter informed the
teacher of the Board’s actions, stated that according to
the College’s observation and information the faculty mem-
ber was illegally on strike, and continued :*

“If you do not return to the full, faithful and proper
performance of your duties of employment on or
before March 5, 1973, you will be terminated. Your
position on the faculty of this institution will be con-
sidered vacant and someone else will be sought and
employed to perform your duties. If your absence is
due to reasons other than those stated herein, please
promptly contact me, or in my absence, Dr. Walter
Browe.”

% Jt. Ex. 4.

58

On March 5, the College terminated the Union-College
“understanding” of September 11, 1972. The letter in-
formed the Union that the action was “occasioned by your
organization’s no strike provisions in Article X Vi.”

On March 6, the College, by its President, again wrote
to each striking teacher. The letter informed that faculty
member that according to the College’s “observation and

information,” he (or she) was illegally on strike.*’ The let-
ter continued :**

“Your status as a faculty member, therefore, is
terminated as of this date.

Within the next ten days you may request in writing
a hearing to determine whether your conduct in fact
has violated the Act. Such notice should be directed
to me at the College, and, if received within the re-
quired time, a proceeding thereafter will be com-
menced, and a decision made concerning your violation
of the Act and the proper discipline, including termi-
nation.”

By letter to the College dated March 5, fifty-two of the
striking faculty had demanded hearings under Section 6
of P.E.R.A. to determine whether they had violated the

26 Jt. Ex. 19.
27 Jt. Ex. 6.
28 Id.

59

Act. The teachers waived the time limitations in the Act
“because of the number of hearings being requested.”

Although the P.E.R.A. hearings were scheduled for
early April, this suit intervened, and the hearings have not
yet been held.”

29 Jt. Ex. 31. The form of the requested P.E.R.A. hearings was
determined by the Board of Trustees by Resolution dated March 26,
1973 (Jt. Ex. 13):

“RESOLUTION

WHEREAS the Board of Trustees of Lake Michigan College
terminated certain faculty members effective Tuesday, March 6,
1973, for absenting themselves from their positions and abstaining
from the full, faithful, and proper performance of their duties for
the purpose of inducing, influencing, and coercing a change in their
condition of employment, and

WHEREAS, certain such faculty members have requested a
determination as to whether they have violated the provisions of
the Public Employment Relations Act.

NOW, THEREFORE, BE IT RESOLVED that the Board of
Trustees of Lake Michigan College hereby appoints Robert P. Small,
Donald L. Eppelheimer, and Earl H. Place as the officers and body
to commence and hold proceedings for the determination of whether
such faculty members have violated the provisions of that Act; and

BE IT FURTHER RESOLVED that the Board of Trustees
hereby authorizes such officers and body to perform such other acts
as may be necessary to carry out such proceedings, and to report
back to the Board of Trustees their recommendations with respect
to a decision concerning such faculty members terminations.

EXECUTED this 26th day of March, 1973.”

80 This court originally issued a temporary restraining order re-
straining the holding of these hearings. This order was subsequently
set aside on order of the Sixth Circuit Court of Appeals. However, the
College agreed not to hold the P.E.R.A. hearings pending the risposi-
tion of this cause. TRO Proceedings at 100; Pre-Trial Brief on Behalf
of Defendant, Lake Michigan Community College, at 3 (hereafter cited
as Def. Pre-Trial Brief).

60

The parties have argued at some length, and presented
much testimony, concerning the proper characterization of
the Resolutions passed and the letters exchanged be-
tween the parties between the dates of February 26 and
March 6. The defendants argue that although the College’s
intent was to permanently terminate the striking faculty
as of that date, and to recruit a new faculty as soon as
possible, still, in light of P.E.R.A.’s hearing and appeal re-
quirements, the “terminations” of the plaintiffs were in
legal effect “suspensions” until the final determination by
the Board on the record made by its committee. In line
with this argument, the defendants contend that the Feb-
bruary 26 Resolution was in the nature of a rule or pol-
icy; that it was final as to no particular teacher; that the
President of the College made the initial determination as
to which individual teachers to “suspend”, signalled by the
letters of March 6, and that the hearings were for the dual
purposes of inquiring into the merits of the President’s
determination and of finally terminating those judged to
have violated the Act. The defendants are arguing that
their institutional structure and course of action with re-
gard to the striking teachers is closer to the ideal model
of administrative due process than might appear on first
impression. They are also suggesting, although they have
not strenuously argued, that this cause is not ripe for ad-
judication.

The plaintiffs, on the other hand, argue that the Febru-
ary 26 Resolution by its own foree operated as a final
discharge from employment as of the end of March 5,
subject only to the condition that the teacher had not re-
turned to work. The scheduled hearings were thus post-

discharge hearings, in the nature of a review of a decision
which had already been made.

61

When the parties dispute an interpretation or charac-
terization of acts and events, the court ought to give great
weight to the parties’ contemporaneous interpretations and
assumptions, insofar as these can be ascertained. The
court finds the defendants’ interpretation to be strained,
and the plaintiffs’ more in accordance with the intent of
the actors and the effect of the actions on the parties and
events. It is apparent that the defendants and other Col-
lege administrators intended the. word “termination” to
have its ordinary meaning, that is, discharge or firing, not
suspension. The success of the College’s recruitment of
replacements depended in part upon the College’s repre-
sentations that the terminations were final. The replace-
ments which were hired appear to have been treated as
permanent. The plaintiffs likewise have assumed that they
were finally terminated as of midnight March 5, and the
defendants have done little to alter this assumption aside
from verbal gestures in connection with the application of
P.E.R.A. or in connection with this lawsuit.

The defendants ean get little help from the general prin-
ciples of administrative law or from the particular provi-
sions of P.I.R.A. The February 26 Resolution cannot be
fairly characterized simply as a “policy” or policy state-
ment of the Board. The legislature had already laid down
the general policy concerning economic strikes, at least, in
P.E.R.A., so the Resolution laid down no new rule of con-
duct. It appears that those to whom the “policy” was to
apply were sufficiently known and identified by the Col-
lege authorities on February 26 so that it cannot be said
that the “policy” applied to a general class of people
whose composition shifted according to decisions made on
grounds extraneous to the matter under consideration. The
Chairman of the College Board testified that the Trustees
“made a finding that those who were out at that time [ Feb-

2

ruary 26] were in violation of the law,” and, as noted,
the College conceded that it intended the February 26
Resolution to operate as a permanent termination as of
March 5, unless the strikers avoided the effect by return-
ing to work at that time. Such a finding and effect are not
characteristic of a general “policy” or of a legislative de-
cision, but of an adjudicative decision, a judgment or de-
cree. Under the circumstances, the application of the judg-
ment to the individual strikers by the President on March
6 was in the nature of an execution of a judgment. Thus,
the March 6 “termination” of the striking faculty cannot
be characterized as a mere “suspension,” a step in the ini-
tiation of administrative action rather than an event of
independent final significance. Similarly, the defendants’
analysis does not logically, naturally, or necessarily flow
from Section 6 of P.E.R.A. or from the relevant case law.

The court also finds that the relations between the top
administrative officials and the Board of Trustees were
extremely close. Mr. Richard Gates, a member of the
Board, testified at the M.E.R.C. hearings that the Board
gave no formal instructions to the administration con-
cerning the College’s bargaining position. Rather, Mr.
Gates indicated that the administrators “usually” meet with
the Board in executive session, and that after discussion
a “concensus position” was developed.**? Under these cir-

31 Trial Tr. at 352.

82 Lake Michigan College, No. C73B-33, Proceedings before Trial
Examiner of M.E.R.C. (March 19, 1973), at 14. [Hereafter cited as
“M.E.R.C, Transcript.’’]

The Transcript of the Proceedings before Trial Examiner of
M.E.R.C. is technically hearsay. However, the defendants did not make
a hearsay objection at trial. They had adequate opportunity to cross-
examine during the M.E.R.C. hearings, and the issues there were simi-
lar to those here, so they suffer no prejudice.

63

cumstances, there was certainly no separation of functions
even remotely analogous to that which exists in large gov-
ernmental administrative agencies between the prosecu-
torial and adjudicative divisions.

The court concludes that the February 2€ Resolution
operated to discharge the striking teachers as of midnight,
March 5. The hearings which the College has proposed to
conduct under P.E.R.A. are thus post-discharge hearings,
in the nature of a review of action already taken.

After the beginning of the strike and the discharge of
March 5, negotiations between the College and the Union
continued intermittently with a view to resolving the is-
sues and ending the strike. However, the Union and teach-
ers effectively abandoned their strike as early as March
22, 1973. On that date, the Union delivered a “Corrected
Copy for [sic.] Federation Proposal” to end the strike.*
Point One was that all striking factulty members would
immediately return to their former positions, and no re-
prisals would be instituted for striking by the College. The
Proposal then added a face-saver for the Union. The Un-
ion proposed that if it prevailed before M.E.R.C. on the
then-pending unfair labor practice charge, then the Col-
lege would grant the factfinder’s recommendations, rein-
stitute the previously bargaining sections of the contract,
and make other relatively minor changes. If the College
prevailed on the unfair labor practice charge, on the other
hand, the faculty would finally accept the College’s freeze
on salaries for the 1972-75 school year, and would guaran-

33 Jt. Ex. 12. On March 21, the Union had delivered its original
proposal. Jt. Ex. 11. The corrected copy added the clause, “the
librarians’ and counsellors’ loads will be equalized,” to the list of
changes the College would do in the event the Union prevailed on the
unfair labor practice charge.

64

tee a complete full semester’s work for each student. “At
the end of the current semester,” the Proposal continued,
“the status of each striking faculty member would revert
to the present status.”

At trial, the head of the Union negotiating team testified
that, while the total situation continued to be discussed, the
offer to return to work was not conditioned on the Col-
lege’s full acceptance of the Proposal.* The striking teach-
ers had obviously been defeated and were in fact prepared
to return to work immediately, whether or not the College
accepted the Union’s face-saver. The only truly operative
sections of the March 22 Proposal were those being adding
up to a total surrender. Under the circumstances, the court
concludes that the strike was fully abandoned by the
teachers on March 22, 1973, and that the College knew
this fact. The fact that the College refused to accept the
return of its experienced teachers is evidence of a resolute
plan to destroy the Union and to make its discharges
stick.

84 At trial, defendants contended that the “status’’ to which the
Proposal referred was strike status, so that the Union was asking the
College to accept a return to strike status in the event the College won
before M.E.R.C. Trial a 130-131. Edward Shaffer, head of the Union’s
negotiating team, testified that “status” did not refer to strike status,
Id. at 130, and the court cannot find that a Union against the wall would
place such a harsh proposal on the table. Instead, the “present status”
referred to the status of no collective bargaining agreement, no collec-
tive understanding, and no signed, written, individual teachers’ contracts
in hand. This sentence was merely an acknowleddment of an existing
situation, a situation which was almost wholly beneficial to the College.

35 Trial Tr. at 127.

36 The College insisted before this court that it did not understand
the Proposal of March 22 and the attendant discussions to constitute
an unconditional offer to return to work within the standards established
by federal labor relations law. See, e.g., Trial Tr. at 49-50. The court
does not believe the standards evolved in federal labor law apply to this

aspect of the case.
(continued on next page)

65

On March 29, 1973, Union and College negotiators met
in a mediation session at the office of M.E.R.C. Chairman
Robert G. Howlett in Grand Rapids. At that time, the Col-
lege made the Union an offer to conclude a new three-year
collective bargaining agreement. The M.E.R.C. Trial Ex-
aminer found that the College offered the Union as bar-
gaining agent for those actively employed by the College,
including the strike replacements, “more than had been
previously offered across the bargaining table before the
strike ... inasmuch as the offer of March 29, in addition
to the granting of the grid raise during the school year
1972-1973, included a cost-of-living increase during the
years 1973-1974 and 1974-1975."*" The offer also included
a proposal that all faculty members who had been termin-
ated because of engaging in a strike should resign as of
March 5, and the College would accept the resignations,
thereby revoking the earlier terminations.** The Union re-
jected the College’s proposal, and on April 2 made the pro-
posal the basis of another (or, technically, an amended)
unfair labor practice charge before M.E.R.C. The M.E.R.C.
Trial Examiner accepted all the facts alleged in the Un-
ion’s affidavit as correct. However, he concluded that the

(continued from preceding page)

The Union could not and did not draw its March 22 Proposal with
reference to the rights guaranteed them and liabilitics imposed upon
them by federal labor law. However, considering the general policies
of federal labor law as stated in the basic acts and expounded by the
N.L.R.B. and the courts, this court is not prepared to say that, under
the circumstances, the March 22 Proposal was not an “unconditional”
offer within the meaning of the federal law. Even under the strictest
of standards, all possible doubt that the teachers had finally abandoned
their strike was eliminated by the filing of the complaint with this court
on April 6, 1973, and the discussions immediately subsequent thereto.
See Trial Tr. at 128.

37 Def. Ex. 4 at 10.
38 Id. at 6.

66

Union remained the exclusive bargaining agent for all
the employees and that the College had the obligation “to
made any offer toward achieving a collective bargaining
agreement.”** M.E.R.C. accepted the Trial Examiner’s con-
clusion without comment.“

The March 29 offer was merely another attempt to
embarrass and defeat the Union. Under Michigan labor
law, the union is deemed to be the exclusive collective bar-
gaining representative of the strike replacements, even
though the replacements are not union members and have
interests adverse to those who are. The Union’s ties were
naturally with the striking teachers. By making the Union
a salary proposal for the replacements which the Union
could not possibly accept, the College ensured that the
Union would not be embraced as benefactor and protector
by the replacements.

The College’s reaction to this court’s Order of April 30,
1973 is also reflective of the Board’s general attitude
toward the teachers. After suit was filed by the Union,
this court ordered the College Trustees to “immediately
reinstate and continue the teachers in their former position
of employment at fuil compensation from the first day of
May 1973...” In an effort to ensure cooperation between
the returning teachers and the replacements so that the
students would be protected, this court also ordered that
the “reinstatement procedure be adjusted so as to avoid
discontinuity of student studies and grading.”

When the teachers returned to work under the court
order on May 1, they were given a letter from the Execu-
tive Viee President of the College. The letter was addres-
sed, “Dear Former Faculty Member,” and it requested

39 Id at 11.
40 Def. Ex. 9.

67

the teachers to sign a list of returnees. The letter con-
tinued, “Pursuant to an order of the Federal District Court,
you will be placed on the College’s payroll as of today.
At this time you have not been assigned any duties, and
you are to remain at home and await our call.”

This action by the College was a deliberate failure to
execute the Order of this court in good faith. Sending the
teachers home was designed to further frustrate and
humiliate them. The order to “immediately reinstate and
continue the teachers in their former position of employ-
ment” plainly meant reinstatement to their former position
as active teachers. That part of the order which referred
to an adjustment of the procedure to avoid discontinuity
of student studies and grading was a mandate for cooper-
ation, and could not be interpreted by any fairminded
person as negating the reinstatement order.

The returning teachers properly and correctly thought
they were snpposed to assume their duties, and many went
to their offices and classrooms. Naturally, some confusion
developed, but, as testimony taken at trial showed, there
were no serious incidents.

Having manufactured confusion by failing to execute
the order of this court in good faith, the College exploited
the resulting situation in the Court of Appeals. The
counsel for the College filed an affidavit recounting infor-
mation he had received by telephone from the Executive
Vice President of the College. Counsel stated as follows :*

“1 Pl. Ex. 10.

*2 Appeal from a Mandatory, Interlocutory Order of the United
States District Court for the Western District of Michigan, Appendix
at 237-238, Lake Michigan College Federation of Teachers v. Lake Michi-
gan Community College, No. 73-8084 (6th Cir.) The Appendix was
submitted here at the request of the Three-Judge Court. This affidavit
was based substantially upon hearsay, twice removed, with inherent prob-
ability of error.

68

“3. He is reliably informed that the plaintiff-
teachers herein, meimbers of plaintiff Union, ap-
peared en masse at the College campus this morning,
forced their way into the students’ classes then in
session, either by physically ejecting the new in-
structors or stating to them that the former in-
structors (the plaintiff teachers) were there by
Court order, and the new instructors were to leave
immediately, and created a mass disturbance in the
lounge by exciting students with statements that
the College was in contempt of the District Court’s
order for not having immediately placed the former
instructors back in their class rooms; and that
several of the new instructors or old instructors
who did not strike have left the campus under fear
of violence and retaliation for their having worked
during the strike since February 15, 1973.

“4. He also is reliably informed that numerous
students, as a result of such conduct, have left their
classes, have stated their intentions not to return
under these or any similar circumstances and/or
are quitting their education at the College.

“5. He also is reliably informed that the Board
of Trustees of the College and its administration
are seriously considering completely and _ finally
closing the College under these disruptive circum-
stances.”

The court concludes that counsel’s affidavit represented
a deliberate and gross exaggeration and misrepresentation
of the true situation at Lake Michigan College on May 1,
1973. The College authorities were so determined to pre-
vent even a temporary return of the striking teachers that
they fabricated a vision of anarchy which was presented

69

to the Court of Appeals in an attempt to influence a de-
cision in their favor.

On July 3, 1973, there was another mediation session
with the College and the Union, this time at the office of
Employment Relations Commissioner Ellman in Detroit.
At trial, the attorney for the defendants stated that the
attorney for the plaintiffs said at the meeting that the
strikers were now clearly offering unconditionally to re-
turn to work. The attorney for the plaintiffs stated that
he really said that the strikers were now offering uncon-
ditionally to return to work since it apparently had not
been clear to the College that such an offer had been made
previously. The witnesses for the defendants tended to
support the testimony of the defendants’ attorney; the wit-
nesses for the plaintiffs tended to support the testimony
of the plaintiffs’ attorney. There is no doubt that the plain-
tiffs made an unconditional offer to return to work on
July 3. In view of the court’s previous findings on the
matter of the offer to return, the court does not need to
resolve the question of what the plaintiffs’ attorney actual-
ly said on July 3.

Section 6 of P.E.R.A.* prohibits public employees, such
as the teachers who are plaintiffs here, from engaging in
strikes “for the purpose of inducing, influencing or coercing
a change in the conditions of compensation or the rights,
privileges, or obligations of employment.” If the teachers
have engaged in such a strike they may be discharged.
P.E.R.A. operates to designate the College Board as the
tribunal to determine whether the striking teachers violat-
ed the Act. That determination has not yet been made.
Although the teachers have not denied that they were en-

#8 M.C.L.A. Sec. 428.206.

70

gaged in concerted action, both the Union and the teachers
have denied that they engaged in a strike for the purpose
of inducing, influencing or coercing a change in the con-
ditions or compensation or the rights, privileges, or obli-
gations of employment. Potentially, the Union and teachers
have raised two separate major issues under P.F.R.A.,
one of law, and one of fact. The legal issue is whether there
is a distinction in Michigan public employment relations
law between an economic strike and an unfair labor practice
strike, and if so, what the effect of distinction is.** The
factual issue is whether the Union and teachers were en-
gaged in an economic or an unfair labor practice strike.
The court finds that under P.E.R.A. both the legal and
factual issues are substantial and non-frivolous. The court
does not and will not resolve these issues, for the only
major question raised by the complaint for this court is
whether, under all the circumstances, the Due Process
Clause restricts the tribunal and the time and manner in-
which these issues may be resolved.*

44In federal labor relations law, the question of whether the em-
ployees are engaged in an unfair labor practice rather than an eco-
nomic strike is determined by trying before the N.L.R.B. the question
of whether the employer in fact committed an unfair labor practice.
However, the federal rule emerged from a statutory and policy context
different from P.E.R.A. Section 6 of P.E.R.A. expressly requires an
affirmative finding of the strikers’ “purpose.” It is possible that em-
ployees may be found to be on strike for the purpose of protesting an
unfair labor practice even though no unfair labor practice has in Michi-
gan law been committed by the employer, so long as the employees im-
mediately return to work when M.E.R.C. makes such a finding. If all
strikes are held to be prohibited, then the “purpose” clauses of Sections
1 and 6 are nugatory. The court makes no attempt to solve these prob-
lems of statutory construction.

45 Since the court is not called upon to determine either the purpose
or legal validity of the teachers’ strike, this case is vastly different from
Bennett v. Gravelle, 323 F.Supp. 208 (W.D. Md.), aff'd. 451 F.2d 1011

(continued on next page)

ee ee

ce cise et RT me

71
B.

The legislative heart of Michigan public employment
labor law is the Hutchinson Act, Mich. P.A. 1947, No. 336,
as amended, Public Employment Relations Act, P.A. 1965,
Nos. 379, 397, and P.A. 1973, No. 25.*° M.C.L.A. Sees. 423.-
201 et seq., M.S.A. See. 17.455(1) et seq. P.E.R.A., in con-
junction with other laws, establishes an institutional and
legal framework which structures, influences, and to some
extent controls the relations between some public em-
ployers, including the defendants and their employees. An
understanding of this framework is essential to a proper
analysis of the case presently before the court. As a practi-
cal matter, the legal institutions and rules influenced the
actions of the parties at every step in the developments
which led to the filing of this suit. As a legal matter, all
the major issues of this case can be intelligently resolved
only with continuing reference to Michigan labor law.

An overview of P.E.R.A. reveals that its fundamental
purpose is to create a balance between the public employer
and the public employee, in the matter of labor-manage-
ment relations in order to foster an equitable adjustment
of interests and to ensure fundamental fairness to all con-

(continued from preceding page)

(4th Cir. 1971), cert. dism. 407 U.S. 917 (1972). There, several public
employees went on strike, allegedly to protest the employer’s racially
discriminatory policies, and these employees asked the court to create
a substantive constitutional exception to the state’s public employee no
strike policy. The court refused to create an exception based upon the
alleged purpose of the strike.

** Most of the events having significance for this lawsuit occurred
before the effective date of P.A. 1973, No. 25, June 14, 1973. Conse-
quently, P.E.R.A. as amended through 1965 applied at the time the
present controversy arose. The 1973 Act did not amend Sec. 6 of
P.E.R.A., M.C.L.A. Sec. 423.206, the provision which has primary impact
upon this case.

72

cerned. As Justice Frankfurter put it, “[t]he heart of the
matter is that democracy implies respect for the ele-
mentary rights of men ...; a democratic government must
therefore practice fairness ...” Joint Anti-Fascist Refu-
gee Committee v. McGrath, 3+l U.S. 123, 170 (1951).
(Concurring Opinion.) (Emphasis supplied.) Thus, em-
ployees are forbidden to strike,*’ but as a necessary gud
pro quo employers are under an especially strong duty to
bargain in good faith.* This duty is certainly imposed by
P.E.R.A. itself. This construction of P.E.R.A. follows not
only from the express words of the Act, but also from the
traditional assumption that state’s law-makers intended
to comply fully with the obligations imposed by the Due
Process Clause of the Fourteenth Amendment. Speaking
to the similar problem of procedural guarantees afforded
federal employees, the United States Supreme Court has
said, “where administrative action has raised serious con-
stitutional problems, the Court has assumed that Congress
or the President intended to afford those affected by the
action the traditional safeguards of due process. [Citations
omitted.] These cases reflect the Court’s concern that
traditional forms of fair procedure not be restricted by
implication or without the most explicit action by the

47 M.C.L.A. Sec. 423.206, quoted in full, infra, n. 52.

48 M.C.L.A. Sec. 423.215 reads in pertinent part: “A public employer
shall bargain collectively with the representatives of its employees . . .
For the purposes of this section, to bargain collectively is the perform-
ance of the mutual obligation of the employer and the representative of
the employees to meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of employment,
or the negotiation of an agreement, or any question arising thereunder,
and the execution of a written contract, ordinance or resolution incor-
porating any agreement reached if requested by either party, but such
obligation does not compel either party to agree to a proposal or re-
quire the making of a concession.’ (Emphasis supplied.)

a | |

73

Nation’s lawmakers . . .” Greene, swpra, 360 U.S. at 507-
508.

The state agency principally concerned with public em-
ployment relations is the Michigan Employment Relations
Commission (formerly called the Labor Mediation Board
and here referred to as M.E.R.C.), composed of three mem-
bers. M.C.L.A. See. 423.3. M.E.R.C. does not have exclu-
sive jurisdiction in this area, since both public employers
and the state courts also have extensive jurisdiction in
particular circumstances.

Public employees are given the right to organize and to
engage in lawful concerted activities for the purpose of
collective bargaining. M.C.L.A. Sec. 423.209. Under the
auspices of M.E.R.C., machinery is established for the de-
finition of appropriate bargaining units, M.C.L.A. See.
423.213, and for the selection, certification, and decertifi-

cation of collective bargaining agents. M.C.L.A. Sees.
423.212, 423.214

Procedures and services are established whereby M.E.-
R.C. may assist in the resolution of public employment
disputes. The basic tools are mediation, M.C.L.A. 423.207,
and factfinding, M.C.L.A. See. 423.25.

Public employers and labor organizations and their
agents are specifically prohibited from engaging in certain
enumerated unfair labor practices.** M.C.L.A. See. 423.210.
M.E.R.C. is given jurisdiction to hear unfair labor practice
charges and to issue cease and desist orders, which are
enforceable by the Court of Appeals. Any person aggriev-
ed by a final order of M.E.R.C. granting or denying relief

4° Before the adoption of the 1973 amendment, P.E.R.A. did not
expressly prohibit unfair labor practices by unions, and M.E.R.C. had
no jurisdiction in this area.

74

may likewise seek review in the Court of Appeals. M.C.-
L.A. See. 423.216.

Since the original enactment of P.E.R.A. in 1947, strikes
by public employees have been statutorily prohibited.”
However, the relevant language of the Act, which has been
the same since 1947, creates some doubts as to whether all
strikes are proscribed. The Act specifically prohibits con-
certed work stoppages “for the purpose of inducing, in-
fluencing or coercing a change in the conditions, or com-
pensation, or the rights, privileges, or obligations of em-
ployment.” Assuming there are meaningful distinctions

50 The 1965 version ot the basic no-strike provision, in force when
this case arose, reads as follows:

“Sec, 1. As used in this act the word “strike” shall mean the
concerted failure to report for duty, the wilful absence from one’s
position, the stoppage of work, or the abstinence in whole or in
part from the full, faithful and proper performance of the duties
of employment, for the purpose of inducing, influencing or coercing
a change in the conditions, or compensation, or the rights, privileges
or obligations of employment. Nothing contained in this act shall
be construed to limit, impair or affect the right of any public em-
ployee to the expression or communication of a view, grievance,
complaint or opinion on any matter related to the conditions or
compensation of public employment or their betterment, so long
as the same is not designed to and does not interfere with the full,
faithful and proper performance of the duties of employment.”

The current no-strike provision, M.C.L.A. Sec. 423.201 (West’s
Michigan Legislative Service 1973 at 82) is not significantly dif-
ferent from the earlier version.

Except for the 1965 addition of the word “concerted” before the
words “failure to report for duty . . .” apparently in order to make
Sec. 1 parallel Sec. 6 (see infra, n. 52), neither the 1965 nor the
current provision is significantly different from the Hutchinson Act’s
prohibition, P.A. 1947, No. 336, Sec. 1. The constitutionality of Sec.
1 was upheld in City of Detroit v. Division 26 of Amalgamated As-
sociation of Street, Electric Railway & Motor Coach Employees of
America, 332 Mich. 237, 51 N.W.2d 228 ( 1952). The constitutional
authority of the state to prohibit public employee strikes is not an
issue in the case presently before the court.

‘nme, innemmnmaneian nee

75

between economic strikes and unfair labor practice strikes
— and federal labor law certainly draws such distinctions,
see, e.g., Mastro Plasties Corp. v. N.L.R.B., 350 U.S. 270
(1956), the Act leaves substantial doubt as to whether the
unfair labor practice strike falls within the statutory pro-
hibition. No Michigan cases directly on this point have
been cited to this court, or found.”

Under the provisiens of the original Hutchinson Act,
a public employee was “deemed to be on strike” when he
engaged in any concerted work stoppage, regadless of its
purpose. P.A. 1947, Sec. 6. Discharge of striking em-
ployees was mandatory, automatic, and immediate, with
the strikers losing all pension and retirement benefits in
addition to their jobs. Id. Sec. 4. However, the discharged
employee was entitled, on request, to a hearing before the
public employer wherein he could establish that he did not
violate the provisions of the Act. Id. Sec. 6. Because dis-
charge was legally automatic and immediate at the com-
mencement of the strike, the hearing was necessarily held
after discharge. The employee could have an adverse de-
cision reviewed by the Labor Mediation Board. Id. Illegal
strikers could be re-employed by the public employer, but
their salary on re-employment was limited by law, and they
were placed on a two-year statutory probation. Id. See. 5.

The 1965 amendments, P.A. 1965, Nos. 379, 397, signifi-
cantly altered the scheme. While retaining the basic pro-
hibition on strikes by public employees, the amendments

It can be argued that by not specifically including unfair labor
practice strikes within the express prohibitions of P.E.R.A., Secs. 1 and
6, the legislature intended to legalize or permit such strikes. On the
other hand, it may also be argued that P.E.R.A. contemplates no dis-
tinction between economic and unfair labor practice strikes, or that if
unfair labor practice strikes are outside the statute, then the common
law prohibition on such strikes applies.

76

repealed those provisions requiring the discharge of strik-
ers and limiting the terms of their re-employment. The
employer was given the option of imposing no diseipline
on illegally striking employees, or of imposing any appro-
priate discipline up to and including discharge.”

The 1965 amendment retained the basic Section 6 em-
ployee right to a hearing before the employer in the event
of a work stoppage and the employer’s actual or proposed
exercise of the power to discipline or discharge. However,
at least three iinportant changes were made. First, whereas
under the old Section 6 and employee was deemed to be on

52 The 1965 version of Sec. 6 of P.E.R.A., which is still in effect,
M.C.L.A. Sec. 423.206, reads as follows:

423.206 Same; deemed on strike; proceeding to determine
violation of act; decision, review

Sec. 6. Notwithstanding the provisions of any other law, any
person holding such a position who, by concerted action with others,
and without the lawful approval of his superior, wilfully absents
himself from his position, or abstains in whole or in part from the
full, faithful and proper performance of his duties for the purpose
of inducing, influencing or coercing a change in the conditions or
compensation, or the rights, privileges or obligations of employment
shall be deemed to be on strike but the person, upon request, shall
be entitled to a determination as to whether he did violate the pro-
visions of this act. The request shall be filed in writing, with the
officer or body having power to remove or discipline such employee,
within 10 days after regular compensation of such employee has
ceased or other discipline has been imposed. In the event of such
request the officer or body shall within 10 days commence a pro-
ceeding for the determination of whether the provisions of this act
have been violated by the public employee, in accordance with the
law and regulations appropriate to a proceeding to remove the
public employee. The proceedings shall be undertaken without un-
necessary delay. The decision of the proceeding shall be made with-
in 10 days. If the employee involved is held to have violated this
law and his employment terminated or other discipline imposed, he
shall have the right of review to the circuit court having jurisdic-
tion of the parties, within 30 days from such decision, for determina-
tion whether such decision is supported by competent, material and
substantial evidence on the whole record.

Ne 2 OOS em tee ne

77

strike when he engaged in any concerted work stoppage,
he now was deemed to be on strike only when he engaged
in a concerted work stoppage for the purpose of achieving
economic goals. This amendment had the effect of import-
ing the basic ambiguity of P.E.R.A. with regard to unfair
labor practice strikes into Section 6.

Second, while the original Act provided a discharged

_ employee would “be entitled . . . to establish that he did

not violate the provisions” of the Act, P.A. 1947, No. 336,
Sec. 6, the amended version entitled the disciplined em-
ployee “to a determination as to whether he did violate
the provisions” of the Act, with review of a decision ad-
verse to the employee in the Court of Appeals, “for deter-
mination whether such decision is supported by competent,
material and substantial evidence on the whole record.”
M.C.L.A. See. 423.206. The amended version contemplates
a significant shift in the nature of the hearing before the
employer. Originally, any concerted work stoppage created
a rebuttable presumption that the employee was illegally
striking, and the employee had the burden of asserting
affirmative defense to negative this presumption. Under
the new provision, the presumption of illegality is removed
for the purposes of the hearing, and the employer is given
the obligation of establishing an employee violation by
competent and material evidence.

Finally, the 1965 repeal of the mandatory discharge pro-
visions combined with changes in the language of Section
6 to eliminate the original definiteness as to the timing of
the employer’s discharge hearing. Under the 1947 Act, the
hearing was necessarily after discharge. The 1965 version
does not state explicitly whether the employer’s hearing
is to be before or after discharge, and the scheme of the
amended Act can accommodate either alternative. M.C.-
L.A. See. 423.206. It seems settled that Section 6 does not

78

preclude a post-discharge hearing, ef. School District for
the City of Holland v. Holland Education Association, 380
Mich. 314, 157 N.W. 2d 206, 210 (1968), and no Michigan
ease has been found holding or even suggesting that the
statute precludes a pre-discharge hearing. Although a
hearing must be held by the employer on timely request,
the timing of the hearing is within the discretion of the
employer, so long as the hearing is commenced no later
than ten days after the request.”

Discipline or discharge of striking employees is not the
sole remedy available to public employers faced with a
strike. The Supreme Court of Michigan has held that the
state circuit courts have equity jurisdiction to enjoin strikes
by public employees. However, injunctions are not to issue
upon a mere showing that prohibited concerted activity
has taken place. Rather, wnder the usual principles of
equity, the circuit court should inquire as to whether there
has been violence, irreparable injury, or breach of the
peace, and, under the “clean hands” doctrine, whether the
employer has bargained in good faith.” School District for
the City of Holland, supra, 157 N.W. 2d at 210, 211.

M.E.R.C. has no jurisdiction to remedy illegal strikes
by public employees. This lack of jurisdiction, especially
when coupled with the ambiguous position of the public em-
ployee unfair labor practice strike in Michigan law, some
times puts M.E.R.C. in an awkward situation. For exam-
ple, in the case before the court, the Union filed unfair la-
bor practice charges against the public employer with
M.E.R.C. on February 14, 1973, and went on strike on

88 The court understands that it was on this interpretation of
P.E.R.A. that the majority of the three-judge panel decided that the
constitutionality of P.E.2.A. was not sufficiently implicated in this suit
to require a three-judge court under 28 USC Secs. 2281, 2284.

ao. wn

79

February 15, 1973, allegedly solely to protect the em-
ployer’s unfair labor practice. The employer terminated
the striking employees for carrying on an economic strike
as of March 5. A hearing was held before the M.E.R.C.
Trial Examiner on March 19. The Trial Examiner found
for the employer on July 22,°° and the full Commission
likewise found for the employer on February 25, 1974."

It is apparent that M.E.R.C. nominally had before it only
the unfair labor practice charge against the employer, but

that in reality an addition! issue was the legitimacy of the
employees’ strike.

If M.E.R.C. found that the employer had committed sig-
nificant unfair labor practices, then the union could more
plausibly argue to the courts and the public that its strike
was not illegal and that in any case the equities were with
its strike and the employees as the wronged parties. In
this situation, M.E.R.C. would appear to be compromising
the general legislative policy against public employee
strikes, and infringing upon the jurisdiction of the public
employer to determine the legality of a strike by its em-
ployees.*’ On the other hand, a finding of no unfair labor
practice would be more apparently supportive of the gen-
eral legislative prohibition on strikes, would make it much
more difficult for the union to raise troublesome questions
about the validity of unfair labor practice strikes, and
would not appear to infringe upon or compromise the em-

54 M.E.R.C. Transcript.

55 Loke Michigan College, No. C73 B-33, Decision and Recommended
Order of Administrative Law Judge (July 2, 1973). Def. Ex. 4.

86 Lake Michigan College, Case No. C73 B-33 (M.E.R.
1974). Def. Ex. 9. ( C. Feb. 25,

5? Cf., Saginaw Township Bd. of Ed., 1970 M.E.R.C. Lab. Op. 127.

80

ployer’s jurisdiction to determine the legality of the strike
and the appropriate remedy, if any.

C.

The procedural history and present posture of this case
are of some importance.

Plaintiffs filed their original complaint on April 6, 1973,
alleging infringements of their Due Process rights by the
defendants, and requesting a temporary restraining order
and preliminary and permanent injunctive relief. This
complaint was subsequently amended.

After a hearing, the single district judge to whem the
ease had been assigned issued a temporary restraining
order. On appeal, the United States Court of Appeals for
the Sixth Circuit ordered the temporary restraining order
set aside and vacated.

Meanwhile, the defendants in this cause filed a motion
for the convening of a three-judge court pursuant to 28
USC Sees. 2281 and 2284. In due course, the Chief Judge
of the United States Court of Appeals for the Sixth Cir-
cuit convened such a court, stating that the three-judge
court would have jurisdiction to determine whether a three-
judge court was required in this case. After hearing ar-
guments on the issue, the original three-judge panel did
not finally decide that a three-judge court was required,
but concluded that the matter should proceed before three
judges, with a final decision to be made after all evidence
and arguments had been submitted. Subsequently, one
member of the three-judge panel excused himself and a
substitute was appointed. A majority of this reconstituted
panel then decided that the case was not required to be
heard by three judges, on the grounds that “this is not a
ease in which an injunction is sought to restrain the opera-

shat, sine de enatitiees

81

tion of a state statute on the ground that it is repugnant
to the United States Constitution but is instead an action
for remedial relief for an allegedly unlawful discharge
from employment. . . . ”** Accordingly, an order dissolving
the three-judge court and remanding the case to the sin-
gle district judge was entered.

The district judge to whom the case was remanded had
set on the original and reconstituted three-judge panels,
and he dissented from the order to dissolve the three-
judge court. He thought the P.E.R.A. might be sufficiently
implicated in the case to require the special panel, and
thus thought that three judges ought to hear the case and

then make a final decision on the three-judge court is-
sue. *°

Because of the impact of 28 USC Sees. 2281 and 2284 on
this case, the court cannot examine the constitutionality

of P.E.R.A. itself, and does not presume to do so. Rather,
the court confines itself strictly and narrowly to the facts
of this particular case. The court does not reach or call
into question the constitutionality of the state policy and
statutory scheme of P.E.R.A.

A hearing on the merits was held on March 14 and 15,

1974. The court now turns to the basic legal issueg before
it ,

IL.

American government at all levels is carefully designed

to be strong enough to serve its positive purposes, yet at
the same time is constitutionally limited so that strong,

positive government does not and cannot lead to tyranny.

58 Order Dissolving Three-Judge Court, App. B.
59 Id.

82

The foundation stone of constitutional limitations is the
Due Process Clause in the Fifth and Fourteenth Amend-
ments of the United States Constitution. The Due Process
Clause of the Fourteenth Amendment, specifically invoked
by the plaintiffs here, provides, “No State shall . . . de-
prive any person of life, liberty, or property, without due
process of law.” The basic purpose of the Due Process
Clause is to ensure that governmental action which affects
important interests of citizens shall be objectively rational
and substantially just, insofar as possible in this imper-
fect and complicated world. Thus, in appropriate cases,
courts inquire as to whether particular governmental ac-
tions have a rational basis or whether they are arbitrary
and capricious.

In its procedural dimension, the Due Process Clause as-
sumes that governmental decisions affecting the interests
of citizens will more often than not be rational and just
when made by suitably objective persons following orderly
procedures. This assumption rests on the faith that gov-
ernmental officials will pursue a proper course of action
if given a chance to do so. It is the product of many cen-
turies of Anglo-American constitutional and legal develop-
ment.

Because the Due Process Clause applies to such a wide
variety of activities and situations, the question of whether
the government has provided due process depends upon
the circumstances of each individual case. The resolution
of a Due Process issue necessarily involves the careful
analysis of the various governmental and private interests
involved, and the making of the most delicate and sensi-
tive accommodations in light of the basic purposes of the

Due Process Clause.

The case presently before the court concerns an employ-
ment dispute in the public sector. In some respects, public

83

employment disputes are no different from private dis-
putes. Certamly the ultimate interest of both employer
and employee lies in keeping the agency or institution oper-
ating, and wm this lies the basis for final compromise and
agreement at contract time.

However, the people and the legislature of Michigan
apparently believe that the public sector is sufficiently dif-
ferent from the private to require the statutory proscrip-
tion of strikes by public employees. It is presumed, rightly
or wrongly, that the proscription is necessary to protect
essential public services and because public agencies are
neither imbued with the profit motive nor subject to the
discipline of the market.*° Moreover, some believe that a
strike against a public employer is a symbolic attack upon
the government and the public.

The legal proseriptions on strikes by public employees
do not mean that public managers are given uncontrolled
discretion over employee relations. On the contrary, quite
apart from statutory relations, the concept of justice im-
plicit in the Due Process Clause requires that public man-
agers assume an extra duty to act fairly and equitably
with respect to the employees under their supervision.
While a departmental budget may be gratifyingly low, the
public’s busmess will not be done efficiently if the em-
ployees are treated harshly and unfairly and are denied
effective means of redress for their genwime grievances.
Of course, if an individual employee is truly inefficient,

*°It is often assumed that the absence of a market in the public
sector means the absence of a restraint on employees which is present
in the private sector. However, the absence of such a market and of
the profit motive also frees the public manager from pressures which in
the private sector counsel flexibility and compromise in dealing with
employees and unions. The stock in trade of the politicians who act as
public employers is not money, or at least not their money, but power.
Many contract demands and most strikes are challenges to politicians’
power, and may be more stoutly resisted for this reason.

84

dishonest, or otherwise a poor worker, due process will
not stand in the way of discipline or discharge.

It is especially important to the calculus of this case that
public employees are not mechanical units which can be
moved in and out of their positions with no substantial
damage to themselves, their families, and the larger so-
cial groups of which they are a part. As Justice Douglas
recently said, “Employability is the greatest asset most
people have,” Sampson v. Murray, 415 U.S. 61, 95 (1974)
(dissenting opinion; emphasis supplied), and that is em-
phatically true of the teachers who are plaintiffs in the
present case. In order to teach most subjects at Lake
Michigan College, at least before February 1973, it was
almost always necessary to have earned a master’s degree
or more. For most people, such advanced trai

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1311%3A1. Public record. Not legal advice.