I respectfully dissent from the conclusion reached in the majority opinion.
Initially this proceeding presented three questions: (1) Was the stoppage of work caused by a labor dispute at the establishment of claimants' employer; (2) were the claimants participating, financing or directly interested in such labor dispute; (3) were claimants members of a grade or class of workers who participated, financed or were directly interested in such dispute? Questions 2 and 3 are eliminated by the holding of the majority opinion to the effect that no labor dispute existed *Page 543 within the meaning of the applicable statute, being Chapter 1, Acts of the Legislature, 1936, as amended, and as amended and reenacted by Chapter 76, Acts of the Legislature, 1943, (designated as Code, 21A-6-4(4) in the majority opinion.)
It is not disputed that there was a strike at the establishment of claimants' employer and that pickets were placed at or near the premises where the strike was in progress. Disregarding for the moment the technical definitions of a labor dispute and viewing the situation from a realistic standpoint, I think that a labor dispute in a most pronounced form existed at the establishment where the claimants were employed. Certainly, a strike followed by picketing constitutes more of a labor dispute than a voluntary and wholesale withdrawal because of the absence of a contract providing for conditions of employment. Miners v. Hix, 123 W. Va. 637,17 S.E.2d 810. The following provisions of the National Labor Relations Act defining a labor dispute are pertinent: "The term 'labor dispute' includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee." National Labor Relations Act, U.S.C.A. Title 29, Sub-section 9, Section 152. This Court has tacitly adopted the definition above quoted, using the following language: "We are not bound by the definition of a labor dispute contained in the Federal statutes, but these definitions are at least persuasive of what should be the definition of such a dispute, and are not out of line with the general and common acceptation of the meaning of the term. Until a better definition is found, or there is some substantial reason for a finding that our Legislature had in mind a different meaning to be attached thereto, there would seem to be no impropriety in our accepting these existing definitions in the determination of what was *Page 544 then meant." Miners v. Hix, supra. The strike of the CIO affiliate at the plant of the employer of the claimants was for the purpose of forcing recognition of that union as a bargaining agency and certainly had a direct connection with "the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment". A contest between rival unions constitutes a labor dispute and comes within the above quoted definition. See In re Deep River Timber Company's Employees,8 Wn.2d 179, 111 P.2d 575. It seems to me that the possibility of a stoppage of work caused by a labor dispute between rival unions where each promoted or caused a strike resulting in a stoppage of work is entirely overlooked in the majority opinion.
The second question hereinabove noted is eliminated by the finding of the appeal tribunal and the board of review that claimants had not participated in or financed the labor dispute, and that they were not directly interested therein, which finding has not been challenged.
The third question presents a difficult situation which has caused confusion among the decided cases in the various jurisdictions. The unemployment compensation acts of the various states are similar in their provisions, being derived from an English statute, enacted in 1920, and practically all contain provisions disqualifying persons from receiving unemployment compensation if they belong to a grade or class of workers who participate, finance or are directly interested in a labor dispute which causes a stoppage of work. The basis of this disqualification is that an employee should not receive unemployment compensation when his lack of employment is caused by his voluntary action or passive conduct. In the case ofMiners v. Hix, supra, that view was adopted and is now the law of this jurisdiction. See Annotation, 135 A.L.R. 920. Where non-striking workers refuse to pass through a picket line established by another union, the former participate in a labor dispute and recovery of unemployment *Page 545 compensation will be denied. In re Persons Employed at St. Paul Tacoma L. Co., 7 Wn.2d 580, 110 P.2d 877; Andreas v. Bates,14 Wn.2d 322, 128 P.2d 300. The basis of disqualification is voluntary idleness. I do not mean to say that the claimants should be denied unemployment compensation benefits, as a matter of law, but it is my view that they should be required to show that they were not of the same grade or class of workers who were on strike, the burden being on claimants to make such showing. In re Steelman, 219 N.C. 306, 13 S.E.2d 544.
The Board of Review made a finding of fact with reference to the claimants and that finding under provisions of Section 21, Article 7, Chapter 76, Acts of the Legislature, 1943, is entitled to the same weight as that accorded to the findings of fact of the trial chancellor. "In equity the findings of fact of the trial chanceller will not be disturbed on appeal unless at variance with undisputed evidence or contrary to the plain preponderance of the whole evidence." Syl. 1, Hatten v. Hatten,110 W. Va. 208, 157 S.E. 582; Commissioners v. Mining Co.,122 W. Va. 442, 9 S.E.2d 813. This rule is generally applicable to a judicial review of administrative findings relative to unemployment compensation. See Members of Iron Workers' Union v. Industrial Commission, (Utah) 139 P.2d 208.
I would reverse the order of the Circuit Court of Kanawha County and remand this proceeding with directions that each of the claimants be permitted to introduce evidence to show that they were not members of the same group or class which participated in the strike; that each was deprived of employment by events beyond their control; and that they did not passively submit to such unemployment. The record in this case is too meager to say that the claimants have met this burden of proof. So far as it appears, they offered in one instance to go through a picket line and on account of threatened violence they did not do so, and that thereafter they obtained *Page 546 an injunction from a judge of the circuit court. It does not appear whether they made any effort after the injunction was awarded to engage in their usual and customary employment. On remand, if any claimant should fail to show his unemployment was involuntary and that he made active efforts to enter therein, such claimant should be denied compensation.