(dissenting).
Time Table
• McCauley becomes Director of the Library at the School of Mines on October 1, 1968.
• After nearly 17 years of service, McCau-ley receives an unfavorable formal evaluation in February, 1985. It is the first one — ever.
• McCauley is then given a prescriptive plan to improve his alleged deficiencies by June 30, 1985. It heavily emphasizes computer literature searching skills.
• On June 3, 1985, he was given a reprimand; on June 5, 1985, he was notified that he would be discharged for cause. He was immediately suspended with pay.
• The prescriptive plan aforesaid was not in effect for the full two months; thus, Professor McCauley was not given the time prescribed.
• On July 10, 1985, McCauley commenced grievance procedures per Article 6 of a collective bargaining agreement. McCauley also filed unfair labor practice charges. . On August 2, 1985, McCauley filed a grievance alleging that his dismissal was related to his activities as a union member and union official.
• After hearings, the School of Mines discharged McCauley on January 17, 1986, whereupon his pay ceased.
• Under Article 6 of the collective bargaining agreement, McCauley appealed to the Department of Labor of South Dakota on February 16, 1986, which held against him.
• A totally different grievance was also filed by McCauley in January, 1985, urging that his salary could not be terminated until he exhausted all of his appeal rights to said Department of Labor, pursuant to Article 6 of the collective bargaining agreement.
• SUMMARY: There are, therefore, two grievances and one unfair labor practice filed, all of which were combined into one hearing by the Department of Labor of this state; they are also combined in the present appeal.
This Court will not substitute its judgment for the Department’s on the weight of evidence regarding questions of fact unless we find that decision to be clearly erroneous, or arbitrary, capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. We will not disturb the findings of the Department unless we are left with a definite and firm conviction that a mistake has been made. Finck v. Northwest School District #52-3, 417 N.W.2d 875 (S.D.1988). In this case, a mistake has been made.
Reversible Error
McCauley was dismissed from his tenured position by virtue of an unfair labor practice, namely: Termination resulting from union activities. The evidentiary record bears this out. McCauley alleges that his dismissal violated SDCL 3-18-3.1 *61(quoted by majority). The most relevant case dealing with this statute and these issues is General Drivers and Helpers Union v. Brown County, 269 N.W.2d 795 (S.D.1978). As the majority discusses, General Drivers sets forth guidelines to determine whether a discharge was in violation of SDCL 3-18-3.1. The following discussion highlights violations of the guidelines as pertinent to the facts.
(1) Initially, I disagree with the majority that McCauley had received adequate criticisms or warnings. His very first formal unfavorable evaluation came in February, 1985, just prior to his dismissal. This evidence is absolutely uncontroverted.
(2) McCauley was not given sufficient advance notice of his impending termination. The prescriptive requirements had not been met in regard to this tenured faculty member prior to termination. The School of Mines gave him a prescriptive plan to improve his deficiencies by June 30, 1985; notwithstanding, he was discharged on or about June 5, 1985. These two salient facts are also uncontroverted.
(3) Department of Labor made a specific finding that the School of Mines was opposed to unionization. Open hostility to unions was demonstrated by smoking gun memos discovered during the course of this litigation. The President of the School of Mines and Dr. Orava, who was in a supervisory capacity over grievances filed by Professors/Instructors, made statements that were clearly hostile to the union. Dr. Ora-va made reference to “incompetence,” fostered by unions in an office memo to Dr. Schleusener dated June 3, 1985. This memo specifically stated, inter alia, “lets perpetuate incompetence! Isn’t that what unions are for?” McCauley received notice of intent to discharge two days after this memo was circulated and other adverse comments were made. President Schleu-sener admitted during the hearings herein that he had an intense personal dislike for unions. In determining whether such a discharge is unlawful, the entire course of conduct of an employer should be considered. NLRB v. Vail Mfg. Co., 158 F.2d 664 (7th Cir.1947). Evidence of an employer’s hostility toward the union is one of the primary elements in reviewing the employer’s course of conduct. NLRB v. Condenser Corp. of America, 128 F.2d 67, 72-73 (3rd Cir.1942).
(4) From all indications, McCauley was, in fact, a competent employee. This is bolstered by the fact there was no unfavorable evaluation until shortly prior to termination. Reason dictates that if he were truly a bad professor or employee that, over a course of 17 years he would have been notified formally of his alleged deficiencies or would have received notice of termination. His sole substantiated complaint against McCauley toward all his duties was his alleged inability to perform computer literature searches. He was also alleged to have filed too many grievances. An employee cannot be discharged for filing grievances; it is a per se unfair labor practice for an employer to do so. John Klann Moving and Trucking Co. v. NLRB, 411 F.2d 261 (6th Cir.1969). See, SDCL 3-18-3.1(4) which defines an unfair labor practice as a “[Discharge ... against an employee because he has filed a complaint ...” So South Dakota law protects professors who file grievances. It is to be remembered that the South Dakota School of Mines bought into this collective bargaining agreement. Thus, it must live by it and our state statutes.
(5) While there existed no unionization drive ongoing, McCauley was a known proponent and officer of the union. Dr. Schleusener, President of the School, knew of McCauley’s union activity. The Department of Labor made specific findings that this knowledge was present at the time of termination. An employer may not discharge an employee based partly on business reasons if a part of that decision is based on the employee’s union activities. NLRB v. Park Edge Sheridan Meats, Inc., 341 F.2d 725 (2nd Cir.1965); NLRB v. West Side Carpet Cleaning Co., 329 F.2d 758 (6th Cir.1964).
(6) School of Mines has given an implausible explanation for the termination. While some legitimate business reasons may have been present, the overwhelming *62weight of the evidence points to termination due to anti-union animus. “ ‘... the fact that a lawful cause for discharge is available is no defense where the employee is actually discharged because of his Union activities.’ ” General Drivers, 269 N.W.2d at 799 (quoting N.L.R.B. v. Ace Comb. Co., 342 F.2d 841, 847 (8th Cir. 1965)). At the highest echelon, School of Mines’ officials openly deplored unionization. Again, it is noted that the School of Mines did enter into a collective bargaining agreement.
McCauley was dismissed from his position wrongfully because of or through a violation of the collective bargaining agreement. The collective bargaining agreement set out 14 specific criteria which constitutes “just cause.” However, the School of Mines, in its letter notifying McCauley that “just cause” existed for termination, only set out two charges which fell within the 14 criteria for “just cause.” These were (1) “wrongful failure to comply with lawful instructions of a supervisor” and (2) “failure to adhere to a constructive plan put into effect on March 18, 1985.” From a review of the record, no evidence exists to support this first charge. The Department of Labor made no specific finding on this issue, and only cursorily referred to it. It is important to note also that School of Mines did not give McCauley the full time period to complete the constructive plan. Thus, the two allegations against McCau-ley fall. Nor does it seem that the length of time originally allotted to complete the plan was time enough to complete the requirements of the plan.
School of Mines discharged McCauley pursuant to Section 15.10 of the collective bargaining agreement. McCauley was suspended with pay as authorized by 15.10. McCauley proceeded to appeal pursuant to Article 6, Grievance Procedure. Article 6 authorizes appeals to the South Dakota Department of Labor. SDCL 3-18-15.2 specifically allows appeals to the Department of Labor if no resolution of the grievance is resolved through the grievance procedure. See, International Union of Operating Eng’rs Local #49 ex rel. Maack v. Aberdeen School Dist., 463 N.W.2d 843 (S.D. 1990) (Notices of appeal should be liberally construed in favor of their sufficiency.) Additionally, Section 15.10 fixes the burden to prove “just cause” on the employer and, more importantly, prohibits final action against a tenured faculty member prior to exhaustion of all Article 6 provisions. When final action to terminate McCauley occurred on January 17, 1986, McCauley had neither exhausted all of his Article 6 rights nor made a clear expression of his desire to waive his rights. Thus, per the express terms of the bargaining agreement, McCauley was prematurely terminated. Assuming arguendo that McCauley was properly discharged for “just cause,” he is nevertheless entitled to a fair hearing below on the amount of pay he is entitled to until he exhausted all of his rights under the labor agreement by which he, and all faculty, were employed. See generally, Kierstead v. Rapid City, 248 N.W.2d 363 (S.D.1976) (employee entitled to reinstatement and back pay since Department of Labor director lacked specific statutory authority to hear and determine the grievance presented).
Under the state of this record, I am not comfortable in joining the majority opinion. As I review this case, I am overwhelmed that this man gave 17 years of his life to the South Dakota School of Mines and Technology and was terminated before he had a chance to improve himself in computer searching skills. Tenure is a precious right for a college professor. His tenure was foreshadowed by a mind set against unions. Such a mind set should not be determinative or relevant to the availability of a judicial forum for the adjudication of impartial individual rights. Our courts exist, not to deny relief to those who have been injured, but, on the contrary, to fulfill their obligation to make themselves available to litigants who have been deprived of their rights. Courts exist as a haven for those who seek fair dealing. This professor is entitled to the protection of his tenure and the bargaining agreement.