Concurring Opinion
Sullivan, J.Appellant assigns as sole error that the decision of the Review Board is contrary to law. It argues among other things that the findings of the Board do not support the ultimate conclusion reached by the Board. With this contention I agree, but I cannot draw from that area of agreement any authority on our part to reverse the Board. I concur in the result reached by the majority only for the reason that in my opinion the appellant-employer has not shown as a matter of lato that the appellees-employees were ineligible to receive benefits.
It seems apparent to me from a reading of the Employment Security Act and the Rules duly promulgated thereunder by the Indiana Employment Security Board that at the administrative level it is the burden of the employer to prove the ineligibility or disqualification of the employee if an alleged labor dispute is involved in the claim. Indiana Acts 1947, ch. 208, § 1504, as amended and as found in Indiana Annotated Statutes § 52-1539c (Burns’ 1964 Repl.) ; Indiana Acts 1947, ch. 208, § 1802, as amended and as found in Indiana Annotated Statutes § 52-1542a(c) (Burns’ 1969 Supp.) ; Indiana Employment Security Board Rule (52-1542)-1, as found in Indiana Annotated Statutes (Burns’ 1967 Rules & Regulations).
It is only logical and practical that the burden be upon the employer rather than to require the employee to prove negatively that he was not terminated due to a “stoppage of work existing because of a labor dispute at the factory, establishment, or other premises at which he was last employed.” See Thomas Products Co., Inc. v. Review Board (1969), 145 Ind. App. 425, 251 N. E. 2d 473.
Looking to the determination of the full Review Board in *290our case, it would appear, superficially, to be an affirmative award because it grants benefits to the claimants-emplbyees. With reference, however, to the party having the burden of proof, i.e., the employer, that determination is a negative award. In other words, the Board determined that the employer had not shown the employees to be ineligible.
' Upon appeal by the employer under such circumstances, it is not within our power or authority to test either the affirmability or the reversability of the Review Board’s decision in the light of the adequacy of the factual findings.1
Therefore, we cannot say that the decision here is erroneous unless appellant-employer, having had the burden of proof before the full board, shows by the record that each of the statutory prerequisites for disqualification were established before the board as a matter of law. Metropolitan Board of Zoning Appeals v. Standard Life Insurance Co. (1969), 145 Ind. App. —, 251 N. E. 2d 60. This, appellant has not done.
In short, it seems that, notwithstanding the requirements of the Rules & Regulations of the Employment Security Board, insofar as they require findings of fact by the Review Board, the failure of such Board to make adequate, or in fact any, findings does not in itself authorize reversal. Before such findings or the adequacy thereof become germane to proper appellate review it must appear that the party having the burden of proof before the administrative agency obtained an affirmative award or decision. The defeated party may then appropriately assert that the award or decision is not supported by adequate findings. If, however, at the administrative level, the party having the burden suffers an adverse decision, the findings, if any, of the Board, lose their significance because *291that party must obtain reversal, if at all, upon the strength of its having carried the burden of proof upon all essential issues as a matter of law. If that party cannot do so, it is of little consequence that the findings made by the Board do not affirmatively support the ultimate result.
The Rules and Regulations of the Employment Security Board however, do, in fact, require the Review Board to set forth in writing its findings of fact. Indiana Employment Security Board Rule (52-1542j)-l, as found in Indiana Annotated Statutes (Burns’ 1967 Rules &. Regulations).2
Therefore, even though I feel that the quality of the factual findings here cannot affect the duty of this Court to affirm, since appellant has failed to show, or even argue, that each element of statutory disqualification was present as a matter of law, I nevertheless feel compelled to disassociate myself from any holding, dictum, or inference of the majority opinion that such findings support the ultimate conclusion as reached by the Review Board.
The Findings and Conclusions of the Board, together with its Statement of Facts, are set forth in the majority opinion and need not be restated here. Certain other matters of evidence not therein contained are deemed of import, however, insofar as those findings are concerned.
The undisputed evidence shows that on September 25, 1964, by order of the International Union United Auto Workers, 89 plants of General Motors Corporation were struck simultaneously across the country by the UAW membership, and that as a result the entire automotive operations of the corporation were virtually shut down.
The evidence also establishes that the direct impact of the strike was pervasive throughout the system; that production at the 41 GM parts plants selectively excluded by the Interna*292tional Union from direct strike action was substantially curtailed; that this was recognized by the union leadership and membership as the inevitable consequence of the union’s selective strike strategy; and that normal production could not be resumed at these plants until all issues in the entire dispute had been settled and a new National Agreement signed.
The evidence shows, finally, that this was true with respect to the four specific locations involved in this proceeding, at three of which the employees actively joined the strike; and at all four of which a substantial curtailment of production resulted.
The findings made by the Board, while perhaps supported by evidence, do not support the ultimate decision. To the contrary, such findings are for the most part irrelevant to that ultimate decision and to the award granted the employees-appellees.
Appellees here are ineligible for benefits under the Employment Security Act if their unemployment for the period here involved was due to (1) a labor dispute which (2) caused (3) a work stoppage (4) at the factory, establishment or other premises where they were last employed. Acts 1947, ch. 208, § 1504, as amended and as found in Indiana Annotated Statutes § 52-1539c (Burns’ 1964 Repl.). The ultimate conclusion stated by the Board here, in purported support of its decision and award, is as follows:
“The Review Board ultimately concludes that there was no strike, lockout, or other directly attributed shortage (sic) of work due to a labor dispute at the factory, plant, or establishment where the claimants were last employed and, therefore, § 1504 of the Act is not applicable.” (Emphasis supplied)
This ultimate conclusion is unsupported by any findings of fact or conclusion of law with reference to causal relationship between the admitted labor dispute and the admitted work stoppage. To the contrary, paragraph 6 of the Statement of Facts made by the Board, in my opinion, requires a finding *293as to causation which would render the Board’s ultimate conclusion erroneous. That paragraph reads as follows:
“(6) Of the 89 GM plants which were struck, some but not all were GM assembly plants. The four plants involved herein were manufacturers of parts and supplies. When the assembly■ plants were struck, the parts and supplier plants were faced with a lack' of work which, in turn, resulted in a layoff at some plants but there was no plant involved herein that was completely shut down unless said plant was actually shut down due to a strike on local issues.” .'(Emphasis supplied)
That portion of the Statement of Facts, in my estimation, requires a finding of ultimate fact that the strikes at the assembly plants were the cause of work unavailability at the four plants with which we are concerned. Obviously, such finding of ultimate fact was not made nor was any direct finding made concerning causation. It is argued that Finding of Fact No. 3 and Finding of Fact No. 4, as stated by the Board, constitute and provide the negative causative element. At first blush, the seeming meticulous phrasing of such findings might give that impression. Such findings are as follows:
“ (3) At the time the claimants herein were seeking benefits, there was no strike involved at the factory, establishment, or other premises where these claimants • were last employed nor is there any contention that the employer locked out said claimants. They were laid off due to a lack of work,
“ (4) During the time mentioned herein, GM continued to operate the four plants in question so far as they had available work. There is no testimony that operations were only on a standby or maintenance basis. There is no testimony of a slowdown or curtailment of production being used as a tool by either labor or management in negotiations at the four plants in question.”
In fact and in substance, however, Finding No. 3 merely states that there was no “strike” at any of the four plants here involved but that there was a lack of work. Finding No. *2944 merely states that production slowdown or curtailment, if any, was not being used as a tool in the labor negotiations. Neither, nor both, of these findings exclude an ultimate conclusion of fact that there was production curtailment, i.e., work stoppage, caused by a “labor dispute.”
I think it is appropriate to point out that certain of the other findings and conclusions made by the Board do not support the ultimate conclusion made by it. First, the Board found that there was no “controlled” curtailment of production, i.e., work stoppage. Such finding, however, is not a finding that production was not substantially curtailed at these four plants. The test to determine whether or not there has been a “work stoppage” as set forth in Carnegie-Illinois Steel Corp. v. Review Board (1947), 117 Ind. App. 379, 72 N. E. 2d 662, quoted by the majority opinion, nowhere requires such curtailment “to be controlled.”
Further, there is no specific finding or conclusion with reference to whether or not the four plants here involved do or do not fall within the definition of “establishment” as that term is used in the statute. The Statement of Facts made by the Board would support either view on this issue.
The majority opinion alludes to Conclusion No. 5 of the Board as supporting an ultimate conclusion that there was no “work stoppage.” As heretofore stated, that evidentiary conclusion merely indicates that there was no controlled curtailment of production. The majority opinion thus appears to insert an additional and unwarranted element into the definition of “work stoppage” as it exists in Indiana. Such requirement is, in my opinion, contrary to the logic and purpose of the compensation law in that production curtailment flowing naturally and necessarily from a labor dispute often times designedly precludes manipulative efforts and controls.
On the whole, it would appear either that the Board misinterpreted the law of Indiana with reference to requisite Statement of Facts, Findings and Conclusions, or that it *295desired as a matter of equity to achieve a particular result and, therefore, carefully phrased its Findings and Conclusions so as not to conflict with that desired result. For example, the Board in its Statement of Facts stated that there was no complete shutdown except due to strikes on local issues. This indicates that the Board either felt that a complete shutdown was necessary in order to meet the “work stoppage” test, in which case it misinterpreted or ignored the law of Indiana as set forth in Blakely v. Review Board (1950), 120 Ind. App. 257, 90 N. E. 2d 353, and Carnegie-Illinois Steel Corp. v. Review Board, supra; or it wished to avoid application of the established criteria for determining “work stoppage” in order not to set forth an open and obvious conflict between the Findings and Conclusions, and the ultimate decision.
Appellees in their briefs properly paraphrase each of the contentions made by appellant in its brief. During oral argument, however, appellant injected a public policy consideration deserving of comment here. Appellant argued that state funds in the form of compensation benefits should not be made available to unions in such a manner as to constitute a subsidy to selective strike activity such as here conducted. In this connection, it was the substance of appellees’ argument that even if the union did, in fact, utilize the “selective strike” method for maximum negotiating leverage upon the entire General Motors operation and even if the union did so with the knowledge and expectation that certain non-striking employees, arbitrarily selected by the union, as here, could draw financial assistance in the form of unemployment benefits, thereby decreasing the adverse effect of the labor dispute upon such employees, such does not alter the fact that union conduct of this sort is not statutory cause for benefit ineligibility. Appellees stated that if the labor strategy of this sort is deemed an evil it is for the legislature to so declare and to remedy that evil by statutory amendment. While I recognize the very real public policy consideration in this respect I tend strongly to agree with appellees that we can *296no more judicially legislate or implement what we think public policy should be in this regard, than we can arbitrarily, dehors the record, attribute to the union the “evil” motives hereinabove referred to.
For the reasons hereinabove set forth, I concur only in the result reached by the majority in its opinion.
. Note. — Reported in 255 N. E. 2d 107.
. In this regard Carlton v. Board of Zoning Appeals (1969), 252 Ind. 56, 245 N. E. 2d 337; Kosciusko County v. Public Service Commission (1948), 225 Ind. 666, 77 N. E. 2d 572; and Block v. Fruehauf Trailer Division, Fruehauf Corp. (1969), 146 Ind. App. 70, 252 N. E. 2d 612, are clearly distinguishable in that they involve an appeal from an award in favor of the party having the burden of proof. Compare Department of Financial Institutions v. State Bank of Lizton (1969), 253 Ind. 172, 252 N. E. 2d 248.
. This Rule makes no distinction between negative and affirmative awards.