NO. 82-359 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

DECKER COAL COMPANY, a joint venture between 

Western Minerals, Inc., an Oregon corporation 

and Wytana, Inc., a Delaware corporation, 

Petitioner and Respondent, 

vs. 

EMPLOYMENT SECURITY DIVISION OF THE MONTANA 

STATE DEPARTMENT OF LABOR AND INDUSTRY and 

THOSE MEMBERS OF THE PROGRESSIVE MINE WORKERS 

OF AMERICA, Sheridan, Wyoming, who are 

Claimants in Board of Labor Appeals Decision 

No. 2601, 

Respondents and Appellants. 

Appeal from: District Court of the Thirteenth Judicial, 

In and for the County of Big Horn 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellants: 

Hilley and Loring, Great Falls, Montana 

Emilie Loring argued, Great Falls, Montana 

R. Scott Currey argued, Helena, Montana 

For Respondent : 

Holland & Hart, Billings, Montana 

Carey E. Matovich argued, Billings, Montana 

Submitted: March 24, 1383 

Decided: ~uly 5, 1983 

4% -_I_c_ Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellants (collectively hereafter "claimants") appeal 

from a decision of the District Court, Thirteenth Judicial 

331~ deed 

District, P County, which in effect held that 

claimants were not entitled to unemployment insurance 

benefits. 

Two principal issues arise in this appeal. The first is 

procedural, raised by us, whether MAPA (Montana 

Administrative Procedure Act) applies to agency and court 

handling of claims for unemployment insurance benefits (for 

brevity "claims"). The second issue is substantive, whether 

a stoppage of work occurred which disqualified claimants for 

benefits. 

We hold that MAPA does not apply to the determination of 

such claims; and that the claimants in this case are entitled 

to unemployment insurance benefits. 

Nearly all members of Local 1972, Progressive 

Mineworkers of America, employees of Decker Coal Company, 

filed claims for unemployment compensation benefits for the 

period from August 15, 1980 to September 15, 1980, during 

which time the local was engaged in a labor strike at 

Decker's surface coal mine in Big Horn County, Montana. 

The claims were submitted for decision to a deputy of 

the employment security division of the Montana State 

Department of Labor and Industry, who determined that the 

claimants were not eligible for such benefits because of a 

stoppage of work during the strike. The adverse decision of 

the deputy was appealed by claimants to an appeals referee 

who after hearing, made a written decision denying the 
claimants any unemployment insurance benefits, and finding 

that a work stoppage existed during the period of the strike. 

The claimants appealed the decision of the appeals 

referee to the Board of Labor Appeals. The Board reversed 

the decision of the appeals referee, holding that the 

claimants were entitled to receive unemployment compensation 

benefits in accordance with their claims, if otherwise 

qualified. 

Decker appealed the Board's decision to the District 

Court. There the Board was reversed and the decision of the 

appeals referee was reinstated. A fina.1 order was entered by 

the District Court accordingly, and this appeal ensued. 

I. DOES MAPA APPLY TO CLAIMS FOR UNEMPLOYMENT 

INSURANCE BENEFITS? 

In this case, the District Court applied the provisions 

of MAPA, particularly section 2-4-621, MCA, instead of 

applying the unemployment insurance law. In reversing the 

holding of the Board of Labor Appeals, the District Court 

stated in this case: 

"The Board of Labor Appeals is held to the same 

standard of review of a fact finder's decision as 

is this Court. The Board cannot substitute its 

judgment as to the weight of the evidence on 

questions of fact for that of the appeals referee. 

The Board may reverse or modify the decision of the 

appeals referee only if substantial rights of a 

party have been prejudiced because administrative 

findings are 'clearly erroneous in view of the 

reliable, probative and substantial evidence on the 

whole record' or is 'affected by other error of 

law. ' . . . The decision of the Board of Labor 

Appeals exceeded its scope of jurisdictional 

authority by substituting its judgment of the facts 

and the weight of the evidence for that of the 

appeals referee." 

Thus the District Court determined, and Decker here 

contends that the Board of Labor Appeals could not reject or 

modify the findings of fact of the appeals referee unless the 
Board first determined from a review of the complete record 

that the findings of fact of the appeals referee were not 

based upon competent, substantial evidence or that the 

proceedings on which the findings were based did not comply 

with essential requirements of law. 

With respect to this issue, this case parallels another 

case recently before this Court, cause no. 82-106, City of 

Billings v. State of Montana Board of Labor Appeals, Montana 

State Department of Labor and Industry, and 325 Members of 

Local No. 190, Teamsters Union (Decided May 10, 1983) , 

P.2d , 40 St.Rep. 648. In that case we examined the 

provisions of MAPA, and of the unemployment insurance law. 

We refer the reader to that case for our rather complete 

discussion of the applicability of each set of statutes to 

the determination of disputed claims for unemployment 

insurance benefits. It is enough to say here, for the 

convenience of the reader, that in City of - Billings, supra, 

we determined: 

1. There is contained within the unemployment 

compensation insurance law itself, without regard to MAPA, a 

complete procedure for hearing and determining undisputed 

claims for unemployment insurance benefits, beginning with 

the deputy of the employment security division, and ending 

with the Montana Supreme Court. Sections 39-51-2401 through 

39-51-2410, MCA. 

2. The Board of Labor Appeals, as a quasi-judicial 

board (section 2-15-1704, MCA) exercises the functions of a 

quasi-judicial board as outlined in section 2-15-102(9), MCA. 

As such the Board of Labor Appeals may consider not only the 

record made before the appeals referee but new evidence 

produced at the Board hearing. 
3. The provisions of MAPA are unworkable when an 

attempt is made to apply them to determine claims for 

unemployment insurance benefits. It is an incorrect 

interpretation of statutory law to hold that the Board has no 

power to overturn the fact-findings of the appeals referee. 

4. The District Court, in reviewing of a decision of 

the Board of Labor Appeals, is limited by the provisions of 

section 39-51-2410(5), MCA, which provides: 

"In any judicial proceeding under 39-51-2406 

through 39-51-2410, the findings of the board as to 

facts, if supported by evidence and in the absence 

of fraud shall be conclusive and the jurisdiction 

of said court shall be confined to questions of law I1 . . . 

We reiterate the foregoing interpretations of statutory 

law contained in City - of Billings, supra, as applied to this 

case. It was error for the District Court to limit the power 

and authority of the Board of Labor Appeals by applying MAPA 

provisions against it. The powers and duties of the Board of 

Labor Appeals are to be found in the unemployment insurance 

law, and in the provisions of law granting it authority to 

act as a quasi-judicial board. 

DID A STOPPAGE OF WORK OCCUR WHICH DISQUALIFIED CLAIMANTS? 

Again we determine, as we did in -- City of Billings, 

supra, that the appeal by the claimants to this Court in this 

case squarely places upon us the duty to determine if the 

findings of the Board of Labor Appeals are supported by 

evidence as set forth in section 39-51-2410(5), MCA, and if 

so, whether the Board properly applied the law to those 

facts. We so hold because it is the intent of the 

unemployment insurance law that claims for benefits be given 

accelerated judicial attention (section 39-51-2410(5), MCA) 
and further because the District Court in this case has 

already concluded that the decision of the appeals referee 

(not the Board) was not clearly erroneous and is supported by 

reliable, probative and substantial evidence on the whole 

record; and further that the Board of Labor Appeals' decision 

is erroneous because it is not based upon reliable probative 

and substantive evidence on the whole record. In those 

circumstances, the appeal by the claimants to this Court 

makes it imperative for us to determine if the findings of 

the Board are supported by evidence and whether the law was 

properly applied to the facts. 

If the findings of the Board are supported by evidence, 

in the absence of fraud, such findings are conclusive, and 

the jurisdiction of the District Court and, on appeal, this 

Court, is confined to questions of law. Section 

At oral argument in this case, a discussion arose as to 

the kind of evidence which would be deemed supportive of the 

findings of the Board. We conclude from the regulations of 

the Board that there must be "substantial evidence". Section 

24.7.301(c) (vii) , A.R.M. "Substantial evidence" has been 

defined by this Court: 

"We have recently stated substantial evidence is 

evidence such as will convince reasonable men and 

about which reasonable men will agree supports the 

case of the prevailing party. (Citing cases. ) 

Furthermore, the evidence ma.y be inherently weak 

and still be deemed substantial, and substantial 

evidence may conflict with other evidence 

presented. (Citing cases) . . . " Matter of the 

Estate of Holm (1979), Mont. - , 588 P.2d 

531, 534. 

By way of preface, Decker Coal Company had two primary 

customers for its coal from this mine, Commonwealth Edison 

and Detroit Edison. The coal contracts of Decker are 
commitments to these utilities, but it is the utilities that 

determine how much coal is needed by them. Management 

testified before the appeals referee "[ilf the utilities are 

not taking coal, it slows our production down. That's why it 

is not indicative month to month." In the year of the 

strike, Decker was several million tons under its commitment 

to the utilities, simply because the utilities were not 

taking coal. 

We turn now to the essential facts found by the Board of 

Labor Appeals to determine if they are supported by 

substantial evidence in the record. Then it would remain to 

us to determine if the Board properly found that there was 

not a "stoppage of work" as that term is used in the 

unemployment insurance law. 

The applicable statute is section 39-51-2305(l), MCA: 

"Effective April 1, 1977, an individual shall be 

disqualified for benefits for any week with respect 

to which the department finds that his total 

unemployment is due to a stoppage of work which 

exists because of a labor dispute at the factory, 

establishment, or other premises at which he is or 

was last employed . . ." 

The Board found that during the strike "the employer 

continued to supply the needs of its customers in furnishing 

coal, it being the business of the employer to mine and 

deliver coal to customers." This finding is substantiated in 

full by the testimony of management witness Crilley that 

customers1 needs were supplied during the strike. 

The Board found that "there is no other substantial 

evidence, excluding argument, which would indicate anything 

other than the fact that the employer in this was able to 

fully supply the needs of its customers during that period." 

Again that is fully substantiated by the testimony of the 

management witness Crilley. 
The Board found "a deliberate effort was made and 

accomplished to stockpile coal in preparation for the strike 

so that the functions of the employer would not be 

interrupted insofar as delivering coal to its customers is 

concerned." This was substantiated by the labor witnesses, 

and by the management witness Crilley, who testified that 

before the strike, the "stockpile was larger than normal." 

The Board found by "the testimony of Mr. Crilley, the 

only officer to testify on behalf of the company, that the 

amount of coal that was removed or delivered from the mine or 

mining area from the standpoint of number of trains is not 

indicative of whether or not the strike was having any effect 

on the operations of the employer and specifically that sworn 

testimony by Mr. Crilley appears on page 49 of the 

transcript, lines 1-3, and on page 59 of the transcript, 

lines 27-29." We have quoted some of that testimony above, 

and the citations to the transcript bear out the findings of 

the Board. 

The Board concluded "therefore any finding as to the 

percentage of the number of trains in the strike was not in 

any way supportive of any conclusion as to whether or not 

there was a substantial reduction in the functioning of the 

employers mining operation." This is a conclusion of fact 

and law which the Board as a quasi-judicial board may draw. 

The Board found "the greater weight of the evidence 

further establishes that during the testimony of the 

representatives of the employer, that during the period of 

the strike, they were able to maintain the necessary everyday 

maintenance upon the equipment." On this point, the 

testimony of the management witness was: 
"Chilton: Were there any breakdowns in equipment? 

Crilley: Oh yes. 

"Chilton: Were they major? Crilley: One of them 

was, yes. 

"Chilton: What did that entail? Crilley: Just 

everybody they could find went and got together and 

fixed it and put in long hours to get it done. 

"Chilton: How long was the plant shut down? 

Crilley : I can't recall. I couldn't recall, 

probably, I don't know. Maybe it was . . . 

"Chilton: A matter of hours or days? Crilley: 

Hours. 

"Chilton: Hours? Crilley: Probably close to a 

day, I suppose." 

The Board then found ''the evidence does establish that 

there was some reduction in the amount of preventive 

maintenance, however, there is no indication that the 

reduction in the amount of preventive maintenance in anyway 

interfered with the continual operation of the mine and 

delivery of coal." On this finding, the Board is half right. 

There was no preventative maintenance done according to the 

testimony of Crilley. However, it is true that there is no 

showing in the testimony that the reduction in the amount of 

preventative maintenance interfered with the operation of the 

mine. 

The Board further found "the evidence establishes that 

there was no backlog of orders, no accumulation of work to be 

done following the strike." On this point, the question by 

the appeals referee was whether there was a backlog of coal 

orders after the strike, and Crilley could not give him that 

information. 

The Board then found that "the evidence establishes 

without dispute that shortly after the strike terminated, the 

work force at the mine was reduced by approximately 64 men 

(20 or more being maintenance men) and supports the 
conclusion of fact that both the employer and the claimants 

conceded that there was an overstaffing of the mine prior to 

the time that a strike took place." That evidence came from 

the unsworn testimony of Crilley, who at the Board hearing 

informed the Board that 22 of the 64 people laid off were 

maintenance people. The finding bears on the contention of 

the appeals referee that the "72 people who remained on duty 

during the strike could not have performed the work of the 

441 union members who were on strike." 

The Board further found "the evidence also establishes 

that although there was somewhere in excess of 400 employees 

of the mining operation in the bargaining unit, a number of 

the operations of the mine were run upon a rotating 

four-shift basis. Although there may be all of them working 

for some period of time during any weeks of operation, the 

number of hours that any one man was working would vary 

anywhere from one shift to several shifts and that on the 

average there was always one shift that was not working where 

there was a four-shift rotation basis, and in addition to 

that, prior to the time when the strike took place, the mine 

was on a reduced schedule and those men who were working were 

working in the area of 32 to 36 hours per week." There can 

be no dispute about this finding of fact. All through the 

record there are notations to the effect that the men worked 

from one to four days per week because they were on rotating 

crews and the mine was operating on reduced schedules 

allowing the workers to get 32 to 36 hours per week. As we 

have indicated, in the year of the strike, Decker was several 

million tons under their commitment because the utilities 

were not taking coal. 
Then the Board found "during the period of the strike, 

the evidence establishes that there were 72 first line 

supervisor personnel working in connection with the operation 

of the mine, and in addition thereto, there were at least 6 

persons of administrative personnel who were not first line 

supervisors who were working in connection with the operation 

of the mine. Taking into account the first line supervisors 

and other administrative personnel, the evidence establishes 

that there was a total of approximately 120 administrative 

and supervisory personnel working during the course of the 

strike. " Again this figure comes from the unsworn testimony 

at the Board hearing in a colloquy between the attorney for 

the employer and the chairman of the board. It follows: 

"Houston: Okay now, if you look at the figures 

which I think I worked up in the reply brief before 

Mr. Chilton. We assumed 72 supervisors and the 72 

supervisors I think first appears in the transcript 

by Mr. Rinker. Where he gets that figure, I don't 

know, and then throughout the transcript, the 72 is 

continually referred to. Perhaps the correct 

number of supervisors is 62 and there is an 

additional 6 or however many. Maybe it was 72, but 

I think the number of people, supervisors, 

overhead-type people, salaried personnel-actually 

working during the strike is probably someplace 

around 72 working on production needs. 

llWhalen: Now wait a minute. It was Mr. Crilley 

that shuffled it up to 120 during his testimony. 

"Houston: 120 reflects everyone out there: 

secretaries, clerks. 

"Whalen: He referred to 

"Houston: The whole gamut. 

"Whalen: 72 supervisors, first line supervisors, 

and 120 altogether in my record. That's Mr. 

Crilley's testimony. 

"Houston: Right . . . l1 Board Hearing Tr. at 

14-15. 

The Board next found "as to those people working upon 

the production, the evidence establishes without dispute that 
during the first few days of the strike, some of them were 

working as much as 24 hours a day without stopping and after 

the strike was in progress, it was developed into a schedule 

where they were working 12 hours shifts, 7 days per week in 

operating the mine with administrative and supervisory 

personnel." There are many references to these facts in the 

transcript and they cannot be disputed. 

Following this, the Board found "the evidence further 

establishes without dispute that during the course of the 

strike, there was a complete shutdown by sabotage which, 

attributable to person or persons other than the claimants in 

this case, reduced the production and the ability of the mine 

to function, however, it was not anything that came about by 

reason of a stoppage of work arising from the strike." This 

is an important finding by the Board because the appeals 

referee failed to take it into account in making his 

findings . One of Decker's former employees shot out a 

transformer which cut off power to the Decker mine and closed 

it down for 3 days during the first week of the strike. 

Crilley testified: 

"Crilley: . . . Right, shortly after the strike 

started, we had the power line shot out by a former 

employee and it shut the mine down approximately 3 

days and at that time we really picked up security 

operations, and we drew several people from the out 

of town office which was supporting that too, 

Decker Coal, and they performed in a security 

fashion. 

"Houston : Now you say that he was a former 

employee? How was he? Was he terminated? 

"Crilley: Oh, at that time he was still in limbo. 

The man, we'd laid the man off in April and he 

filed a grievance against us for the methodology of 

the layoff and that was in arbitration at the time. 

We have not reached the decision even, we already 

had an arbitration, but we were awaiting for an 

opinion of the arbitrator." 
It is quite evident that the person who committed the 

act of sabotage was not one of the claimants and it was not a 

union-encouraged act. 

The Board also found "the evidence before this Board and 

analysis of the figures furnished by the employer and 

submitted to the Board for the first time during the Board 

hearing insofar as inventory is concerned establishes that 

there was not a reduction in excess of the amount of 7 

percent of the inventory based upon the period and figures 

furnished by the employer." We will take this point up later 

in discussing the appeals referee's finding on this subject. 

It is enough to say that there was a reduction in inventory 

during the strike from pre-strike levels of 5.47 percent and 

that in the period of 9 weeks following the strike, Decker's 

coal inventory decreased from the average during the strike 

by 10.08 percent. 

Next the Board found "the evidence further establishes 

that there was a reduction in production in the amount of 

approximatel-y 9 percent." We find this could be true 

depending upon what week one selected prior to the strike or 

after the strike. On an average basis, it appears that 

production during the strike was 23.54 percent less than the 

pre-strike 9 weeks, and 21.3 percent less than the 

post-strike 9 weeks. Again we will discuss these figures 

later with respect to whether a stoppage of work occurred 

here. 

The next finding of the Board relates to whether or not 

there was stripping of overburden. Management testified 

there was not. Labor witnesses testified that they could see 

blasting and smoke arising from the overburden which must 

have been used for the raising of overburden, and that when 
they went back to work there was less powder in the powder 

bins which substantiated their claim that powder had been 

used. We do not regard this finding as having any 

significance on mine production for the purposes of this 

case, however. 

The last finding of the Board is that at the termination 

of the strike, the stockpile which had been prepared in 

anticipation of the strike had not been used up at the 

termination of the strike. This is substantiated by the 

inventory of the coal company at the termination of the 

strike which showed 195,500 tons of coal on hand. 

As we have indicated in the foregoing, the findings of 

the Board are substantiated on the whole record, using the 

standard of substantial evidence. 

We turn now to the findings of the appeals referee, 

which the Board of Labor Appeals refused to accept, but which 

the District Court found were supported by "reliable, 

probative and substantial evidence on the whole record." The 

District Court went no further than to state the foregoing 

conclusion. 

The essential facts found by the appeals referee on 

which he determined there was a stoppage of work, are 

contained in the following paragraph: 

"In an 18-week period, 9 weeks before and 9 weeks 

after, the employer loaded and shipped an average 

of 22.8 trains per week. In the strike period, the 

average was 17 trains per week, a reduction of 25.4 

percent. In the same 18-week period, an average of 

235,373 tons of coal were mined per week but in the 

strike period, an average of 142,085 tons of coal 

were mined per week, a reduction of 37.5 percent. 

In the week before the strike commenced, the 

inventories, silos and stockpiles, contained 

326,459 tons of coal. In the last week of the 

strike the inventory was 195,569 tons, a 40.1 

percent reduction." 
During oral argument, counsel for Decker Coal Company 

contended that the Board of Labor Appeals did not hear the 

witnesses and see their demeanor and that because thereof the 

Board should be bound by the findings of the appeals referee. 

That contention belies what happened in this case. The 

appeals referee, after the hearing which he conducted, asked 

for post-hearing exhibits to be supplied by the employer as 

to the number of trains shipped by Decker pre-strike, during 

the strike, and post-strike, the number of tons of coal mined 

for those same periods, and the inventory of the company for 

the same periods. Following the strike, the employer 

submitted figures on those items, none of which are sworn to, 

and upon which there was no cross-examination, and for which 

the underlying documents were not supplied. Yet all of the 

conclusions of the appeals referee which we have quoted 

foregoing are based upon those unsworn figures with no 

supporting testimony. In such a case, we are "free to make 

our own examination of the entire case and to make a 

determination in accordance with what we find." Kostbade v. 

Metier (1967), 150 Mont. 139, 141, 432 P.2d 382; Estate of 

Jensen (1969), 152 Mont. 495, 500, 452 P.2d 418. 

It is true that at the Board hearing, there were no 

witnesses sworn to testify. However, the Board obviously 

took into consideration statements made by Houston, the 

company attorney, Crilley, the company personnel manager, 

Loring, the labor attorney, and some labor witnesses. There 

is nothing in the Board regulations which require witnesses 

before it to be sworn. The whole proceeding before the Board 

is apparently quite informal. 

What all this means is that this Court is in as good 

position as any party to examine the figures from the 
exhibits and to determine for ourselves the effect of the 

strike. We display some of those figures hereunder. We 

have, however, disregarded the first week of the strike 

because the mine was shut down during that week for three 

days due to the act of sabotage which we have referred to. 

In effect we assume tha.t the production during the first 

week, if the act of sabotage had not occurred, would average 

out with the remaining weeks of the strike. 

INVENTORY 

The appeals referee found that the inventory had been 

reduced as a result of the strike by 40.1 percent. The Board 

of Labor Appeals found that figure to be 7 percent. The 

appeals referee arrived at his percentage figure by taking 

the last inventory week before the strike and comparing it 

with the first inventory week after the strike had ended. We 

think a fairer way of determining the facts relating to the 

inventory would involve a comparison of the 9 weeks 

pre-strike with the 9 weeks following the strike to determine 

their usual averages. Decker argues for this approach in its 

brief stating: "The only fair way to compute usual 

production is to balance good weeks with bad weeks. All the 

evidence was before the appeals referee and the Board, and 

both the good and the bad must be averaged together." 

The pre-strike tonnage of coal in stockpiles and silos 

on hand for the 9 weeks preceding the strikes follows: 

207,915 

218,539 

246,996 

214,105 

197,773 

139,719 

252,196 

312,466 

326,459 

2,116,168 tons 
The average number of tons on hand for the weeks 

preceding the strike is 235,129.78 tons. This figure 

includes the stockpiling that was done prior to the strike 

and in anticipation of the strike. 

During the four weeks of the strike, the inventory of 

the coal on hand is represented by the following figures: 

195,569 

889,029 tons 

Therefore, the average number of tons on hand during the 

strike was 222,257.25 tons. 

These figures indicate the average number of tons on 

hand during the strike was only 12,872.53 tons less than the 

average number of tons on hand for the 9 weeks prior to the 

strike including stockpiling. The 12,872.53 tons represents 

a decrease from the pre-strike average of 5.47 percent. 

In the 9 weeks following the strike, the post-strike 

inventory of coal is represented by the following figures: 

182,803 

1,798,645 tons 

The average of those figures is 199,849.44 tons. In 

other words, the company had on hand as coal inventory 

following the strike, a lesser number of tons than it had 

during the strike. The amount of decrease from the average 

tons of coal on hand during the strike is 10.08 percent. In 

fact, in the 9 weeks succeeding the strike, Decker kept on 

the average 15 percent less coal on hand than it had 
stockpiled or possessed in silos in the 9 weeks preceding the 

strike. 

In the face of these figures, little validity can be 

attached to the findings of the appeals referee that 

inventory had been reduced 40.1 percent. That figure is 

meaningless. 

TRAINS SHIPPED OUT 

The figures for the number of trains of coal shipped out 

from Decker for the 9 weeks preceding the strike are: 

13 

13 

17 

25 

32 

37 

21 

19 

20 

197 trains 

The average shipment per week was 21.9 trains. 

The number of trains shipped for the 3 good weeks of the 

strike are: 

15 

20 

- 18 

53 trains 

The average number of trains shipped out during the 

strike is 17.67. 

The difference between 21.9 and 17.67 is 4.23. This 

difference is a 19.3 percent reduction between trains shipped 

out during the strike and those shipped out pre-strike. The 

appeals referee found 25.4 percent. 
Looking at the trains shipped out post-strike, those 

figures are as follows: 

- 21 

192 trains 

The average of the 9 weeks post-strike was 21.33 trains. 

This represents an increase of 3.66 trains per week over the 

strike average of 17.67 trains. This means a 20.7 percent 

increase in the number of trains shipped out after the 

strike. Again this is lower than the 25.4 percent found by 

the appeals referee. 

In connection with trains shipped out, we note a factor 

not for its argumentative force but to let the parties know 

that we have not overlooked it. The Decker Coal Company mine 

apparently has a "sister mine" operated by the Big Horn Coal 

Company. Decker Coal Company is a joint venture. Wytana, 

Inc., a subsidiary of Peter Kiewit Sons, Inc. is one of the 

joint venturers and Western Minerals, Inc., an Oregon 

corporation, which may be a subsidiary of Pacific Power and 

Light is the other. Big Horn Coal Company is a subsidiary of 

Peter Kiewit Sons, Inc. The managing or operating partner of 

the Decker Coal mine is a subsidiary of the same holding 

company as Big Horn Coal Company. It is to that extent, 

argued Decker's lawyer at the Board hearing, that the two are 

"sister companies." They have some of the same customers. 

Decker submitted among its post-hearing figures to the 

appeals referee a record of trains shipped out by Big Horn 

Coal Company. These figures indicate an increase in trains 
shipped out by Big Horn Coal Company during the period Decker 

was subject to the strike. The inference to be drawn is that 

Decker's commitments for coal were being met by Big Horn Coal 

Company. 

We disregard, however, the references to Big Horn Coal 

Company because the appeals referee made no findings with 

respect to that subject. The Board of Labor Appeals gave it 

no significance in its consideration. Nothing in the 

evidence or testimony connects Big Horn Coal Company with 

Decker's production and operation other than the random 

statements made by the attorney at the Board hearing and the 

post-hearing figures submitted. The Big Horn Coal Company 

figures are unsubstantiated, unconnected, and so are 

irrelevant to our discussion here. 

TONS MINED FROM THE PIT 

The appeals referee found that in the 18 week period 

before strike and after strike, Decker mined an average of 

235,373 tons of coal per week and that during the strike it 

mined an average of only 142,085 tons of coal per week, a 

reduction of 37.5 percent. 

Again, the figures used by the appeals referee are 

skewed. The intensive stockpiling undertaken by Decker 

before the strike resulted in a mine production in excess of 

300,000 tons in three of the nine weeks before the strike 

occurred. In the nine weeks following the strike, there was 

only one week in November when the coal production from 

Decker exceeded 300,000 tons in a week. The appeals referee 

also included the week when the mine was down for three days 

as a result of the power outage induced by sabotage, when 

production was only 62,693 tons in the week. The use of such 

figures does not fairly represent the loss of mine tonnage 
that occurred during the strike. If the one week of the 

strike is omitted, and all weeks exceeding 300,000 tons, the 

resulting decrease in mine production from the viewpoint of 

tons mined is no more than 23.54 percent. 

RELEVANCE OF FIGURES 

What we have attempted to demonstrate by the foregoing 

discussion is that the appeals referee was playing with 

numbers when he made the findings upon which Decker claims 

the District Court should be affirmed. We have played with 

the numbers ourselves to demonstrate that depending upon the 

methodology, argument can be made to substantiate several 

positions favorable or not favorable to the claimants in this 

case. There is no testimonial basis in the record, since the 

figures were submitted post-trial and without underlying 

documents or other proof which gives any degree of certitude 

in relevance to the figures submitted, and how they should be 

used. In effect there has been a failure of proof, because 

the figures used by the referee and his calcula.tions 

therefrom are demonstrably mathematically and statistically 

unsound. Worse, this playing with numbers distracts the 

parties and the court from the real purpose of our 

determination here, did a "work stoppage" occur within the 

meaning of the unemployment insurance law. 

As we noted in the recent City - of Billings case, supra, 

Montana has aligned itself with those courts holding on the 

question that the phrase "stoppage of work" refers to 

employer's operations rather than to the individual 

employee's work, and that strikers may collect benefits under 

the "American rule" so long as their activities have not 

substantially curtailed the productive operations of their 

employer. The record clearly supports the Board of Labor 
Appeals in its finding that here the business of the employer 

was to mine and deliver coal to customers and that there is 

no substantial showing of unfulfilled customer demands nor 

any curtailment in its deliveries of coal to its two 

principal customers. This means that a "stoppage of work" as 

that term is contemplated in the present unemployment 

insurance law, had not occurred in this case. By that fact, 

the claims of the claimants for benefits may not be denied. 

Again we point out, as we did in City - of Billings, 

supra, that the wisdom or even the fairness of the economic 

legislation we are considering here is not before us nor do 

we pass upon its merits. Determination of state economic 

policy is for the legislature. It is in the arena of the 

legislature where labor and management can face off that 

state economic policy in this matter can be decided. 

Accordingly, the judgment of the District Court is 

reversed and the order of the Board of Labor Appeals is 

reinstated. 

We Concur: 

Chief Justice 

Justices 

Mr. Chief Justice Frank I. Haswell, Justice L. C. Gulbrandson 

and Justice Fred J. Weber will file separate opinions later. 
DISSENT 

NO. 82-359 

DECKER COAL COMPANY V. ESD 

Mr. Chief Justice Frank I. Haswell, Mr. Justice L. C. 

Gulbrandson and Mr. Justice Fred J. Weber, dissenting. 

We would remand the case to the District Court for 

judicial review under the correct standard of review in the 

Unemployment Compensation Act. 

Our view in this case on the correct standard of review 

and the respective functions of the Board of Labor Appeals 

and the District Court are set forth in our dissent in Cause 

No. 82-106, City of Billings v. State of Montana Board of 

Labor Appeals et al., 40 St.Rep. 648.