Full opinion text
OPINION FOX, Chief Judge. This case arose out of an employment dispute between Lake Michigan College (hereafter referred to as the College) and certain of its employees, most of whom were teaching faculty represented by the Lake Michigan College 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, 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 Michigan Community College, a publicly created and financed two-year 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 General of the State of Michigan was admitted as an Intervenor 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 tribunal 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 proposed form of the discharge hearings. This case falls under 42 U.S.C. See. 1983, and this court has jurisdiction under 28 U.S.C. Secs. 1343(3) and (4), and 28 U.S.C. Secs. 2201 and 2202. I. Before discussing the legal merits of this case, the court must make a comprehensive survey of the facts, review 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 hearing during which it was informed of the essential facts, issued an Opinion and Temporary Restraining Order. Although 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 assessment of the case was correct. In particular, the court is convinced, as it said in its original Opinion, that the “intransigence” 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 College 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 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 (abbreviated in the record as LMCFT) was certified as the bargaining 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 expression and manner that the College authorities had never fully accepted many of the terms of the collective bargaining argeement which had been “imposed” upon the College by the arbitrators in the Fall of 1967. This intense dissatisfaction 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 concluded 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, 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 almost 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 Teachers, we hereby notify you of our intention to begin negotiating a successor agreement to the present contract. Our negotiating team has been selected and it is 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 February 15 and that the contract does not prohibit it. We urge your team to prepare your position as soon as possible so we can begin.” The Union submitted a substantial number of its 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 complete 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 President 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. Although there had been teacher strikes in 11 Michigan public 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 resolved by early August 1972. At this time the College requested the services of a mediator to be appointed by the Michigan Employment Relations Commission pursuant to the Michigan Public Employment Relations Act. A mediator 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 beginning of the 1972-73 school year under a “day-to-day understanding” with the College. By the terms of the understanding, the teachers would work under the provisions of the expired 1970-72 collective bargaining agreement, except that the new contract terms which had been agreed upon before September 8, 1972, would be implemented. 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 to lock out during 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 Eardley, of Grand Rapids, Michigan, was appointed. The first meeting with the factfinder was held on October 17, 1972, but was adjourned to November 13, 1972, to give the parties an opportunity to bargain further. By the time the factfinder’s report was issued on January 11, 1973, the parties 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 contract, 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 duration of the contract were closely related, and were the subject of major difficulty. 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 negotiated 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 degree or of a stated number of additional educational credits by the individual teacher. The vertical axis was graded by the number 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 dollar amount possible on the grid was reached at eleven years’ service for a person with an M.A. Degree, and at fourteen 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 bargaining agreements, the whole salary schedule was increased, so that persons at the top of the scale received increases, and persons who fell within the grid received that which they 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 pressure of inflation 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 controls. 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 improvement axis of the grid. The College furthermore insisted that in subsequent years of the contract salary increments 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 institution’s ability to pay, this is what the College demanded of the teachers. Moreover, the College demanded rigid adherence to the 1971-72 scale in the future, whatever the inflationary state of the economy. Under the circumstances, these demands were arbitrary, capricious, and unreasonable. The College’s tactics of “stonewalling” on the most vital issue of wages is the modem 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 partially equalize the bargaining power of labor and management, to bring peace to the nation’s industries, and to improve 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 bargain collectively. P.E.R.A. included 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 conditions, 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 establish. 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 “impractical and unrealistic.” Comparing Lake Michigan College 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 were 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 fact-finder also recommended the negotiation of a three-year contract. While the Union urged the acceptance of the fact-finder’s recommendations, the College rejected them. After the issuance of the Factfinder’s Opinion, the parties had bargaining sessions on February 2, 7, and 13. Although events moved rapidly during this period, and the bargaining was complex, the major developments can be summarized. The Union negotiating team reluctantly proposed to substantially write off 1972-73, and to move almost immediately to negotiations concerning 1973-74 and subsequent years. The Union offered and the College accepted 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 increments on the horizontal scale 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 longer be entitled to automatic increases up to the maximum on the scale simply for serving additional years. The College was willing to grant increases on the horizontal 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 conditions, 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 Phyrric 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 nothing but show up for negotiating meetings, there would be no salary increase whatsoever and no final collective bargaining 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 foregoing of the longevity increment; the obvious exasperation of the teachers with the College’s assault on their security ; 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 Union was the first, substantial, foreseeable, and in fact foreseen, cause of the ensuing strike. On February 14, 1973, the Union filed unfair labor practice 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, 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. Although some College classes remained in session, most of those taught by full-time instructors did not meet. The College made several appeals to the striking faculty to return to work, but most remained on strike. The College might have gone to court to seek an injunction to end the strike, School District for the City of Holland v. Holland Education Association, 380 Mich. 314, 157 N.W.2d 206 (1968); see also, Board of Education for School District of City of Detroit v. Detroit Federation of Teachers, 223 N.W.2d 23 (Mich.Ct.App., 1974), at 26, 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 deliberately 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. If 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 College began offering permanent contracts to replacements. 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 Michigan College has observed and been informed that several 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 prohibited by the State of Michigan’s Public Employment Relations Act, and in violation of the faculty’s obligation 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 terminates such faculty members’ status and employment effective 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 College 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 member 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 considered 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.” On March 5, the College terminated the Union-College “understanding” of September 11, 1972. The letter informed the Union that the action was “occasioned by your organization’s material breach of that agreement’s no strike provisions in Article XVI.” 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 letter 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 required time, a proceeding thereafter will be commenced, and a decision made concerning your violation of the Act and the proper discipline, including termination.” 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 Act. The teachers waived the time limitations in the Act “because of the number of hearings being requested.” “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.” Although the P.E.R.A. hearings were scheduled for early April, this suit intervened, and the hearings have not yet been held. The parties have argued at some length, and presented much testimony, concerning the proper characterization of the Resolutions passed and the letters exchanged between 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 requirements, 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 February 26 Resolution was in the nature of a rule or policy; 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 regard 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 adjudication. The plaintiffs, on the other hand, argue that the February 26 Resolution by its own force operated as a final discharge from employment as of the end of March 5, subject only to the condition that the teacher had not returned to work. The scheduled hearings were thus post-discharge hearings, in the nature of a review of a decision which had already been made. When the parties dispute an interpretation or characterization 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 College 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 representations that the terminations were final. The replacements 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 can get little help from the general principles of administrative law or from the particular provisions of P.E.R.A. The February 26 Resolution cannot be fairly characterized simply as a “policy” or policy statement 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 conduct. It appears that those to whom the “policy” was to apply were sufficiently known and identified by the College 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 [February 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 returning to work at that time. Such a finding and effect are not characteristic of a general “policy” or of a legislative decision, but of an adjudicative decision, a judgment or decree. Under the circumstances, the application of the judgment 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 initiation 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 concerning 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 “consensus position” was developed. Under these circumstances, there was certainly no separation of functions even remotely analogous to that which exists in large governmental administrative agencies between the prosecutorial and adjudicative divisions. The court concludes that the February 26 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 issues and ending the strike. However, the Union and teachers 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 faculty members would immediately return to their former positions, and no reprisals would be instituted for striking by the College. The Proposal then added a face-saver for the Union. The Union proposed that if it prevailed before M.E.R.C. on the then-pending unfair labor practice charge, then the College would grant the factfinder’s recommendations, reinstitute the previously bargained 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 1972-73 school year, and would guarantee 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 College’s full acceptance of the Proposal. The striking teachers 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 adding up to 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. 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 College made the Union an offer to conclude a new three-year collective bargaining agreement. The M.E.R.C. Trial Examiner found that the College offered the Union, as bargaining 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 . . . in as much 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 terminated 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 rejected the College’s proposal, and on April 2 made the proposal 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 Union’s affidavit as correct. However, he concluded that the Union remained the exclusive bargaining agent for all the employees and that the College had the obligation “to make any offer toward achieving a collective bargaining agreement.” M.E.R.C. accepted the Trial Examiner’s conclusion 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 bargaining 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 full 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 Executive Vice President of the College. The letter was addressed, “Dear Former Faculty Member,” and it requested the teachers to sign a list of returnees. The letter continued, “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 employment” 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 cooperation, and could not be interpreted by any fairminded person as negating the reinstatement order. The returning teachers properly and correctly thought they were supposed 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 information he had received by telephone from the Executive Vice President of the College. Counsel stated as follows: “3. He is reliably informed that the plaintiff-teachers herein, members of plaintiff Union, appeared en masse at the College campus this morning, forced their way into the students’ classes then in session, either by physically ejecting the new instructors or stating to them that the former instructors (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 circumstances.” 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 prevent even a temporary return of the striking teachers that they fabricated a vision of anarchy which was presented to the Court of Appeals in an attempt to influence a decision 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 Ell-man 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 return to work. The attorney for the plaintiffs stated that he really said that the strikers were now offering unconditionally 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 witnesses for the plaintiffs tended to support the testimony of the plaintiffs’ attorney. There is no doubt that the plaintiffs 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 actually said on July 3. Section 6 of the 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 or 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 violated the Act. That determination has not yet been made. Although the teachers have not denied that they were engaged 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 conditions or compensation or the rights, privileges, or obligations of employment. Potentially, the Union and teachers have raised two separate major issues under P.E.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 etíonomic 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 engaged 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. 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. Sec. 423.201 et seq., M.S.A. Sec. 17.455(1) et seq. P.E. R.A., in conjunction with other laws, establishes an institutional and legal framework which structures, influences, and to some extent controls the relations between some public employers, 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 practical .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-management relations in order to foster an equitable adjustment of interests and to ensure fundamental fairness to all concerned. As Justice Frankfurter put it, “[t]he heart of the matter is that democracy implies respect for the elementary rights of men . ; a democratic government must therefore practice fairness . . .” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170, 71 U. S.Ct. 624, 647, 95 L.Ed. 817 (1951). (Concurring Opinion.) (Emphasis supplied.) Thus, employees are forbidden to strike, but as a necessary quid 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 the state’s lawmakers 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 constitutional 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 Nation’s lawmakers . . . .” Greene v. McElroy, 360 U.S. 470, at 507-508, 79 S.Ct. 1400, at 1419, 3 L.Ed.2d 1377. The state agency principally concerned with public employment 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 members. M.C.L.A. Sec. 423.3. M.E.R.C. does not have exclusive 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 definition of appropriate bargaining units, M.C.L.A. Sec. 423.213, and for the selection, certification, and decertification of colllective bargaining agents. M.C.L.A. Secs. 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. Sec. 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. Sec. 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 aggrieved by a final order of M.E.R.C. granting or denying relief may likewise seek review in the Court of Appeals. M.C.L.A. Sec. 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 specificaly prohibits concerted work stoppages “for the purpose of inducing, influencing or coercing a change in the conditions, or compensation, or the rights, privileges, or obligations of employment.” Assuming there are meaningful distinctions 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, 76 S.Ct. 349, 100 L.Ed. 309 (1956), the Act leaves substantial doubt as to whether the unfair labor practice strike falls within the statutory prohibition. No Michigan cases directly on this point have been cited to this court, or found. Under the provisions of the original Hutchinson Act, a public employee was ‘‘deemed to be on strike” when he engaged in any concerted work stoppage, regardless of its purpose. P.A.1947, Sec. 6. Discharge of striking employees 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 discharge was legally automatic and immediate at the commencement of the strike, the hearing was necessarily held after discharge. The employee could have an adverse decision reviewed by the Labor Mediation Board. Id. Illegal strikers could be reemployed 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. Sec. 5. The 1965 amendments, P.A.1965, Nos. 379, 397, significantly altered the scheme. While retaining the basic prohibition on strikes by public employees, the amendments repealed those provisions requiring the discharge of strikers and limiting the terms of their re-employment. The employer was given the option of imposing no discipline on illegally striking employees, or of imposing any appropriate discipline up to and including discharge. The 1965 amendment retained the basic Section 6 employee 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 important changes were made. First, whereas under the old Section 6 an employee was deemed to be on 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 importing the basic ambiguity of P.E.R.A. with regard to unfair labor practice strikes into Section 6. Second, while the original Act provided that a discharged employee would “be entitled ... to establish that he did not violate the provisions” of the Act, P.A.1947, No. 336, See. 6, the amended version entitled the disciplined employee “to a determination as to whether he did violate the provisions” of the Act, with review of a decision adverse to the employee in the Court of Appeals, “for determination whether such decision is supported by competent, material and substantial evidence on the whole record.” M.C.L.A. Sec. 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 defenses 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 provisions 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 preclude a post-discharge hearing, cf. School District for the City of Holland v. Holland Education Association, 380 Mich. 314, 157 N. W.2d 206, 210 (1968), and no Michigan case 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, under 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, surpa, 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 employee unfair labor practice strike in Michigan law, sometimes puts M.E.R.C. in an awkward situation. For example, in the case before the court, the Union filed unfair labor practice charges against the public employer with M.E.R.C. on February 14, 1973, and went on strike on February 15, 1973, allegedly solely to protest the employer’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 2, 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 additional issue was the legitimacy of the employees’ strike. If M.E.R.C. found that the employer had committed significant 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 it 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 employees. On the other hand, a finding of no unfair labor practice would be more apparently supportive of the general 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 employer’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 whom the case 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 U.S.C. Secs. 2281 and 2284. In due course, the Chief Judge of the 'United States Court of Appeals for the Sixth Circuit convened such a court, stating that the three-judge court would have jurisdiction to determine whether a three-judge court was required in this ease. After hearing arguments 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 recused 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 case in which an injunction is sought to restrain the operation 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 single district judge was entered. The district judge to whom the case was remanded had sat 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 issue. Because of the impact of 28 U.S.C. Secs. 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 issues before it. II. 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. The foundation stone of constitutional limitations is the Due Process Clause in the Fifth and Fourteenth Amendments of the United States Constitution. The Due Process Clause of the Fourteenth Amendment, specifically invoked by the plaintiffs here, provides, “No State shall . . . deprive 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 substantively just, insofar as possible in this imperfect and complicated world. Thus, in appropriate eases, courts inquire as to whether particular governmental actions have a rational basis or whether they are arbitrary and capricious. L19] In its procedural dimension, the Due Process Clause assumes 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 governmental officials will pursue a proper course of action if given a chance to do so. It is the product of many centuries of Anglo-American constitutional and legal development. 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 sensitive accommondations in light of the basic purposes of the Due Process Clause. The case presently before the court concerns an employment dispute in the public sector. In some respects, public employment disputes are no different from private disputes. Certainly the ultimate interest of both employer and employee lies in keeping the agency or institution operating, and in 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 different from the private to require the statutory proscription 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 proscriptions 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 implicit in the Due Process Clause requires that public managers 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 business will not be done efficiently if the employees are treated harshly and unfairly and are denied effective means of redress for their genuine grievances. Of course, if an individual employee is truly inefficient, 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 social 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, 94 S.Ct. 937, 955, 39 L.Ed.2d 166 (1974) (dissenting opinion; emphasis supplied), and that is emphatically 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 training can be acquired only with great expenditures of time and money. Moreover, such training is highly specialized, reducing to a substantial degree the ability of a person to move into new occupat