NO. 82-359 INTHE 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 inBoard 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_ ClerkMr. 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. Twoprincipal 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 thatMAPA does notapply to the determinationof such claims;and that the claimants in this case are entitled tounemployment insurancebenefits. 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 coalmine inBig 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 theclaimants any unemployment insurance benefits, and finding that awork stoppageexisted during theperiod 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 claimantswere 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 refereewas reinstated. A fina.1orderwas enteredby theDistrictCourt accordingly,and this appeal ensued. I. DOESMAPAAPPLY TOCLAIMS 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 reverseormodify 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 evidenceon the whole record' or is 'affected by other error of law.

### ' 

# .. . The decision of the Board of Labor Appeals exceeded its scope of jurisdictional authorityby substitutingits judgment of the facts and the weight of the evidence for that of the appealsreferee." Thus the District Court determined, and Decker here contends that the Board of LaborAppeals could not rejector modify the findingsof factof the appeals referee unless theBoard 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 (DecidedMay 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-judicialboard as outlined in section 2-15-102(9), MCA. As such the Board of Labor Appealsmay considernot only the record made before the appeals referee but new evidence produced at theBoard 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 interpretationof statutory law to hold that the Board hasno 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 findingsof theboard as to facts, if supported by evidence and in the absence of fraud shall be conclusive and the jurisdiction of said court shallbe 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. Itwas error for the District Court to limit thepower and authority of the Board of LaborAppeals by applyingMAPA provisions against it. Thepowers 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-judicialboard.

DID A STOPPAGE OF WORK OCCUR WHICH DISQUALIFIED CLAIMANTS? Again we determine, as 

### we did in City of Billings, 

### -- supra, that the appealby the claimantsto 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 forbenefits 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

(notthe Board)wasnot clearly erroneousand is supportedby reliable, probative and substantial evidence on the whole record;and further that theBoard of LaborAppeals' decision is erroneous because it is notbased 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 lawwas properly applied to the facts. If the findings of the Board are supportedby 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 theremust be "substantialevidence". Section 24.7.301(c) (vii)

### , A.R.M. "Substantial evidence" has been defined by thisCourt: "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 arecommitments 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 slowsourproduction down. That's why it is not indicative month to month." In the year of the strike, Deckerwas severalmillion tons under its commitment to the utilities, simply because the utilities were not taking coal. We turn now to the essential facts foundby theBoard of Labor Appeals to determine if they are supported by substantial evidence in the record. Then itwould 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 anyweek 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 atwhich he is or was lastemployed

# .

# .." 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 customers1needswere suppliedduring 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 thatperiod." Again that is fully substantiated by the testimony of the managementwitness 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 "stockpilewas larger than normal." The Board found by "the testimony of Mr. Crilley, the only officer to testify on behalf of the company, that the amountof coal thatwas removed ordelivered from themine or mining area from the standpoint of number of trains is not indicative of whether or not the strikewashaving any effect on the operationsof the employerand 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 transcriptbear out the findings of theBoard. The Board concluded "therefore any finding as to the percentage of the number of trains in the strikewas 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-judicialboard 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,theywere able tomaintain thenecessary everyday maintenance upon the equipment." On this point, the testimony of themanagement witnesswas:"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 findwent 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, Idon't know. Maybe itwas

# . . . "Chilton: A matter of hours or days? Crilley: Hours. "Chilton: Hours? Crilley: Probably close to a day, I suppose." The Board then found ''theevidence 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 therewas nobacklog of orders,no accumulationofwork 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 64men

(20 or more being maintenance men) and supports theconclusion of fact that both the employer and the claimants conceded that therewas 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 "72peoplewho remained on duty during the strike could not have performed the work of the 441unionmembers whowere 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-shiftbasis. Although there may be all of themworking 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 therewas always one shift thatwas notworkingwhere 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 scheduleand thosemen whowereworkingwere 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 themen worked from one to four days per week because theywere 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 theyear of the strike,Deckerwas several million tons under their commitment because the utilities

were not takingcoal.Then the Board found "during the period of the strike, the evidence establishes that there were 72 first line supervisorpersonnelworking in connection with the operation of the mine, and in addition thereto, there were at least 6 persons of administrativepersonnel who were not first line supervisorswho wereworking 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 

### Iworked up in the replybrief before Mr. Chilton. We assumed 72 supervisorsand the 72 supervisors I think firstappears 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 6or howevermany. Maybe itwas 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 onproduction needs. llWhalen: Now wait a minute. Itwas Mr. Crilley that shuffled it up to 120 during his testimony. "Houston: 120 reflects everyone out there: secretaries,clerks. "Whalen: He referred to "Houston: Thewhole 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 theproduction,the evidence establishes without dispute thatduring the first few days of the strike, some of them were working as much as 24 hours a day without stoppingand after the strikewas in progress, itwas 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 aremany references to these facts in the transcriptand they cannotbe 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, attributableto person orpersons other than the claimants in this case,reduced theproduction and the ability of the mine to function,however, itwas not anything that came aboutby

reason of a stoppage ofwork 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 cutoffpower to theDeckermine 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 shotoutby a former employee and it shut themine down approximately 3 days and at that timewe really picked up security operations,andwe drew several people fromthe 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? Howwas 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 themethodology of the layoffand thatwas in arbitrationat 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 actof sabotagewasnot one of the claimantsand itwas 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 furnishedby the employer." Wewill take thispoint up later in discussing the appeals referee's finding on this subject. It is enough to say that therewas a reduction in inventory during the strike from pre-strike levels of 5.47 percent and that in the period of 9weeks 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 whatweek one selected prior to the strike or after the strike. On an average basis, it appears that production during the strikewas 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 towhether or not there was stripping of overburden. Management testified therewasnot. 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 thatwhenthey 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 findingof 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 coalon hand. As we have indicated in the foregoing, the findings of the Board are substantiated on the whole record, using the standard of substantialevidence. We turn now to the findings of the appeals referee, which theBoard of LaborAppeals refused to accept,butwhich the District Court found were supported by "reliable, probativeand substantial evidenceon thewhole 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 followingparagraph: "In an 18-week period, 9 weeks before and 9 weeks after, the employer loaded and shipped an average of 22.8 trainsper week. In the strike period, the average was 17trainsper week,a reductionof 25.4 percent. In the same 18-weekperiod, an average of 235,373 tons of coalweremined per weekbut 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 theirdemeanorand thatbecause thereof the Board shouldbebound 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 shippedby Deckerpre-strike, during the strike,andpost-strike, the number of tons of coalmined 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 documentswere 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 withwhatwe find." Kostbadev. Metier (1967), 150 Mont. 139, 141, 432 P.2d 382; Estate of Jensen (1969),152Mont. 495,500, 452P.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 tobe sworn. Thewhole proceedingbefore theBoard 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 theexhibits 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 actof sabotage had not occurred, would average outwith theremainingweeks of the strike. INVENTORY The appeals referee found that the inventory had been reduced asa resultof the strikeby 40.1 percent. The Board of Labor Appeals found that figure to be 7 percent. The appeals referee arrived athis percentage figure by taking the last inventory week before the strike and comparing it with the firstinventoryweek afterthe strikehad ended. We think a fairerway of determining the facts relating tothe inventory would involve a comparison of the 9 weeks pre-strike with the 9 weeks followingthe striketodetermine theirusual averages. Decker argues forthisapproach inits brief stating: "The only fair way to compute usual production istobalance good weeks with bad weeks. Allthe evidence was before the appeals referee and the Board, and both the good and thebad must be averaged together." The pre-strike tonnage of coal in stockpiles and silos

on hand forthe 9weeks preceding the strikesfollows: 207,915 218,539 246,996 214,105 197,773 139,719 252,196 312,466 326,459 2,116,168 tonsThe 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 averagenumber of tons onhand during the strikewas 222,257.25 tons. These figures indicate the average number of tons on hand during the strikewas 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 thepre-strike averageof 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 hadstockpiled orpossessed in silos in the 9weekspreceding 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 numberof trains of coal shipped out fromDecker for the 9weekspreceding the strikeare:

13 13 17 25 32 37 21 19 20 

### 197 trains

Theaverage shipmentper weekwas 21.9 trains. Thenumber of trains shipped for the 3 goodweeks 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 outpre-strike. The appeals referee found 25.4 percent.Looking at the trains shipped out post-strike, those figures are as follows:

21 

## - 192trains The average of the 9weeks post-strikewas 21.33 trains. This represents an increase of 3.66 trainsper 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 forcebut to let the parties know thatwe have not overlooked it. The Decker CoalCompany mine apparently has a "sistermine" 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. Themanaging or operatingpartner 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 theBoard 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 trainsshipped outby Big Horn CoalCompany during theperiod Decker

was subjectto the strike. The inferenceto be drawn is that Decker's commitments forcoalwerebeing 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 irrelevantto our discussionhere. TONSMINED FROMTHE 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 nineweeks following the strike,therewas 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 themine was down for three days

as a result of the power outage induced by sabotage, when productionwas only 62,693 tons in theweek. The use of such figures does not fairly represent the loss of mine tonnagethat occurred during the strike. If the one week of the strike is omitted,and allweeks exceeding 300,000 tons, the resulting decrease in mine production from the viewpoint of tons mined isno 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 favorableornot favorable to the claimants in this

case. There isno testimonialbasis in the record,since the figures were submitted post-trial and without underlying documents or other proof which gives any degree of certitude in relevanceto the figures submitted,and how they shouldbe 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 collectbenefits 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 LaborAppeals 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. Thismeans that a "stoppageofwork" 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 legislationwe 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 economicpolicy in thismatter canbe 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,JusticeL. C. Gulbrandson and JusticeFred 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. GulbrandsonandMr. 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 CompensationAct. Ourview 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.