Lake Michigan College Federation of Teachers v. Lake Michigan Community College, s. 74-2323

• Decision Date: 02 July 1975
• Docket Number: 74-2324,Nos. 74-2323,s. 74-2323
• Parties: 89 L.R.R.M. (BNA) 2865, 77 Lab.Cas. P 53,758 LAKE MICHIGAN COLLEGE FEDERATION OF TEACHERS and Edwards Shaffer, individually and all others similarly situated, Plaintiffs-Appellees, v. LAKE MICHIGAN COMMUNITY COLLEGE, Defendant, v. Frank J. KELLEY, Attorney General of Michigan, Defendant-Intervenor-Appellant. LAKE MICHIGAN COLLEGE FEDERATION OF TEACHERS and Edward Shaffer, individuallyand all others similarly situated, Plaintiffs-Appellees, v. LAKE MICHIGAN COMMUNITY COLLEGE, Defendant-Appellant, v. Frank J. KELLEY, Attorney General of Michigan, Defendant-Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1091

518 F.2d 1091

89 L.R.R.M. (BNA) 2865, 77 Lab.Cas. P 53,758

LAKE MICHIGAN COLLEGE FEDERATION OF TEACHERS and Edwards

Shaffer, individually and all others similarly

situated, Plaintiffs-Appellees, v. LAKE MICHIGAN COMMUNITY COLLEGE, Defendant, v. Frank J. KELLEY, Attorney General of Michigan,

Defendant-Intervenor-Appellant.

LAKE MICHIGAN COLLEGE FEDERATION OF TEACHERS and Edward

Shaffer, individuallyand all others similarly

situated, Plaintiffs-Appellees, v. LAKE MICHIGAN COMMUNITY COLLEGE, Defendant-Appellant, v. Frank J. KELLEY, Attorney General of Michigan, Defendant-Intervenor.

Nos. 74-2323, 74-2324.

United States Court of Appeals, Sixth Circuit.

July 2, 1975.

Robert A. Derengoski, Frank J. Kelley, Atty. Gen., George L. McCargar, Jr., Gerald F. Young, Lansing, Mich., John A. Relias, Robert C. Claus, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for appellant in No. 74-2324.

Bernard J. Fieger, Craig, Fieger & Golden, Southfield, Mich., for appellees.

John A. Relias, Paul F. Gleeson, Robert C. Claus, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., Frank J. Kelley, Atty. Gen., Lansing, Mich., Spelman, Taglia, Meek & Lagoni, Paul A. Taglia, St. Joseph, Mich., for appellant in No. 74-2323.

Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and CECIL, Senior Circuit Judge.

PHILLIPS, Chief Judge.

This appeal presents the recurring problem of due process rights of discharged teachers under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The teachers here were employed by the Lake Michigan Community College (College), a public educational institution, and they were discharged in accordance with Michigan's Public Employment Relations Act (PERA), Mich.Stat.Ann. § 17.455(1) et seq., M.C.L.A. § 423.201 et seq., for participating in an illegal strike. In an opinion reported at 390 F.Supp. 103 (W.D.Mich.1974), the District Court concluded that the PERA termination procedures would not provide the teachers with due process, and it granted remedial relief against the College. We hold that in the circumstances of this case the striking teachers do not enjoy the protection of the due process clause and that, even if they do, the District Court incorrectly found the PERA procedurally deficient. Accordingly, we reverse and remand for dismissal of the complaint.

The Lake Michigan College Federation of Teachers (Union) is the collective bargaining representative of the College's faculty. The parties' most recent collective agreement was scheduled to expire in August 1972, and bargaining for a new contract began in February of that year. By early August 1972, most major issues had been resolved except faculty salaries. The Union demanded a 5.5% increase, and the College sought to avoid any increase for the 1972-1973 school year. At the request of the College, the Michigan Employment Relations Commission (MERC) appointed a mediator pursuant to the PERA. Mich.Stat.Ann. § 17.455(7), M.C.L.A. § 423.207. The parties met with the mediator, but no agreement was reached. The collective agreement expired on August 12, 1972, and the faculty returned to work in the fall under a "day-to-day understanding" between the College and the Union. The precise terms and general effect of this understanding are not entirely clear. Apparently it implemented the new contract terms to which the parties already had agreed and carried over some of the provisions of the expired agreement. The District Court found that the day-to-day understanding contained an agreement by the faculty and the Union not to strike.

At the Union's request, MERC subsequently appointed a fact-finder, whose conclusions and recommendations are not binding on the parties. See Mich.Stat.Ann. § 17.454(27), M.C.L.A. § 423.25. The fact-finder held hearings and on January 11, 1972, issued a report recommending acceptance of the Union's proposals. The College rejected the fact-finder's suggestions, and negotiations continued between the parties. In early February 1973, the College and the Union agreed on a one-year contract that did not include a general increase in salary levels. The faculty voted to reject this agreement. The College made further proposals that the Union found unacceptable, and on February 14, 1973, the Union filed unfair labor practice charges with MERC, alleging that the College had breached its duty under the PERA "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . ." Mich.Stat.Ann. § 17.455(15), M.C.L.A. § 423.215. The administrative law judge subsequently found in favor of the College and recommended that the Union's charges be dismissed. On appeal MERC agreed, concluding that the College "engaged in no more than hard bargaining and did not violate its duty to bargain in good faith . . . ." The Michigan Court of Appeals eventually affirmed MERC's decision. Lake Michigan Federation of Teachers v. Lake Michigan College, 231 N.W.2d 538 (Mich.App.1975).

On February 15, 1973, almost all of the faculty went on strike. The College made several appeals to the striking teachers to return to work, but most remained on strike. On February 27, 1973, the College notified all striking faculty members that their concerted action was illegal ¹ and that if they did not return to work by March 5, 1973, their employment would be terminated in accordance with § 6 of the PERA, Mich.Stat.Ann. § 17.455(6), M.C.L.A. § 423, 206. ² On March 5, 1973, the College terminated the day-to-day understanding with the Union on the ground that the Union had breached the no-strike provision of the agreement. On March 6, 1973, the College notified the striking teachers of their termination and informed them that under § 6 of the PERA they could request a hearing to determine whether their conduct in fact violated the PERA. Many of the discharged teachers requested hearings, which were scheduled to begin in early April 1973 before three members of the College Board of Trustees. This litigation intervened, however, and none of the hearings has been held.

On April 6, 1973, the Union and the discharged teachers commenced this action in the District Court against the College. The complaint alleged that the striking teachers had been terminated in violation of the due process clause, and it sought reinstatement until such time as the College devised a termination procedure consistent with due process. The District Court conducted a hearing, and on April 30, 1973, it entered an order requiring immediate reinstatement of the plaintiffs and forbidding the College to hold termination hearings pursuant to the PERA. Shortly thereafter, this court granted a stay pending appeal and eventually vacated the District Court's order as an abuse of discretion. Lake Michigan College Federation of Teachers v. Lake Michigan Community College, 480 F.2d 927 (6th Cir. 1973).

The case proceeded to trial on the merits, and on September 27, 1974, the District Court issued an exhaustive opinion and an order granting injunctive relief to the plaintiffs. 390 F.Supp. 103. In essence, the court held that the discharge of the striking faculty was subject to the requirements of the due process clause because the teachers enjoyed a protected property interest in their employment and because the terminations adversely affected the teachers' liberty as that term is used in the fourteenth amendment. The court further concluded that the hearing procedure established by the PERA was deficient in this case because the Board of Trustees was actually biased against the striking faculty and therefore could not render a decision with the impartiality required by the due process clause. Accordingly, the District Court ordered the College to commence a declaratory judgment action in the appropriate Michigan Circuit Court to determine whether the discharged teachers in fact were on strike illegally within the meaning of the PERA. The College now appeals from the order of the District Court.

The safeguards of procedural due process apply only when a person is deprived of liberty or property, and plaintiffs cannot prevail here unless their discharge implicated one of these protected interests. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court set forth guidelines for determining when an employee has a property interest in continued public employment:

Certain attributes of "property" interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.

In the case at hand, the District Court examined Roth and its progeny and reached the following conclusion:

All the plaintiffs in this case thus have property interests cognizable by the Due Process Clause. Any individual who is a "public employee" by statutory definition plainly has a cognizable property interest when an alleged violation of a substantive prohibition of the statute is sought to be redressed by a statutorily-authorized...