                                           NO.   82-359

                   I N THE SUPREME C O U R T OF THE STATE OF MONTANA

                                                 1983




DECKER COAL COMPANY, a j o i n t v e n t u r e b e t w e e n
Western M i n e r a l s , I n c . , a n Oregon c o r p o r a t i o n
and Wytana, I n c . , a Delaware c o r p o r a t i o n ,

                                           Petitioner        and Respondent,

             vs.

EMPLOYMENT SECURITY DIVISION OF THE MONTANA
STATE DEPARTMENT OF LABOR A N D INDUSTRY a n d
THOSE MEMBERS OF THE PROGRESSIVE MINE WORKERS
OF AMERICA, S h e r i d a n , W y o m i n g , who a r e
Claimants i n Board o f Labor Appeals Decision
No. 2 6 0 1 ,

                                      Respondents and Appellants.




Appeal    from:      D i s t r i c t Court of the Thirteenth Judicial,
                     I n and f o r t h e County o f B i g Horn
                     Honorable Robert Wilson, Judge p r e s i d i n g .

Counsel of      Record:

       For Appellants:

             H i l l e y and L o r i n g , G r e a t F a l l s , Montana
             E m i l i e L o r i n g a r g u e d , G r e a t F a l l s , Montana
             R. S c o t t C u r r e y a r g u e d , H e l e n a , Montana

       For Respondent :

             Holland & Hart, B i l l i n g s ,        Montana
             Carey E. Matovich argued,                Billings,        Montana




                                                 Submitted:        March 2 4 ,     1383

                                                   Decided:        ~ u l y , 1983
                                                                         5




                   -_I_c_
                             4%                  C l e r k
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
                3 3 1deed
                      ~
District, PCounty, 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 - Billings, supra,
                                        of
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 - Billings, supra, as applied to this
                      of
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 - -of Billings,
                                     City
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:
      14-15.
                    Right   . . .   l1   Board Hearing Tr. at

      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
e x h i b i t s and t o d e t e r m i n e f o r o u r s e l v e s t h e e f f e c t o f       the

strike.         We     display      some o f       those     f i g u r e s hereunder.          We

have,      however,        disregarded           the    first      week     of   the      strike

b e c a u s e t h e mine was s h u t down d u r i n g t h a t week f o r t h r e e

days due t o t h e a c t o f s a b o t a g e which w e have r e f e r r e d t o .

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

week,     i f t h e a c t o f s a b o t a g e had n o t o c c u r r e d , would a v e r a g e

o u t w i t h t h e r e m a i n i n g weeks o f t h e s t r i k e .

INVENTORY

        The a p p e a l s r e f e r e e    found t h a t t h e i n v e n t o r y had been

reduced a s a r e s u l t of t h e s t r i k e by 4 0 . 1 p e r c e n t .           The Board

of   Labor Appeals            found t h a t       f i g u r e t o be       7 percent.         The

a p p e a l s r e f e r e e a r r i v e d a t h i s p e r c e n t a g e f i g u r e by t a k i n g

t h e l a s t i n v e n t o r y week b e f o r e t h e s t r i k e and comparing it

w i t h t h e f i r s t i n v e n t o r y week a f t e r t h e s t r i k e had ended.          We

t h i n k a f a i r e r way o f d e t e r m i n i n g t h e f a c t s r e l a t i n g t o t h e

inventory         would       involve        a     comparison          of    the     9     weeks

p r e - s t r i k e w i t h t h e 9 weeks f o l l o w i n g t h e s t r i k e t o d e t e r m i n e

t h e i r usual averages.            Decker a r g u e s f o r t h i s approach i n i t s

brief      stating:               "The    only     fair      way      to     compute       usual

p r o d u c t i o n i s t o b a l a n c e good weeks w i t h bad weeks.                  A l l the

e v i d e n c e was b e f o r e t h e a p p e a l s r e f e r e e and t h e Board,            and

b o t h t h e good and t h e bad must be a v e r a g e d t o g e t h e r . "

        The p r e - s t r i k e   t o n n a g e o f c o a l i n s t o c k p i l e s and s i l o s

on hand f o r t h e 9 weeks p r e c e d i n g t h e s t r i k e s f o l l o w s :

               207,915
               218,539
               246,996
               214,105
               197,773
               139,719
               252,196
               312,466
               326,459
             2,116,168 t o n s
      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 4 0 . 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
            1 7 trains
             9

      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
             -
             5 3 trains


      The average number of trains shipped out during the
strike is 1 7 . 6 7 .
      The difference between 2 1 . 9       and 1 7 . 6 7   is 4.23.    This
difference is a 1 9 . 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:




           - trains
            21
           192

     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 1 7 . 6 7     trains.     This means a 2 0 . 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 - Billings case, supra,
                                     of
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 - Billings,
                                             of
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.
