Dissenting Opinion
Buchanan, J.I respectfully dissent from the majority opinion on two grounds:
ONE The rule of Bootz Mfg. Co. v. Review Bd. (1968), 143 Ind. App. 17, 237 N.E.2d 597, is not a correct statement of the law of Indiana, or elsewhere.
TWO Even if Bootz were applicable, there was no finding by the Board that the threat of a strike did not exist.
ONE
Bootz,1 the 1968 Indiana Appellate Court case followed by the majority, has the dubious distinction of being in a class by itself. Except for four recent cases2 of this Court which *497have applied its extraordinary doctrine, no other Indiana Supreme Court or Appellate Court decisions have done so. To the contrary, Indiana cases have held that “any controversy concerning terms or conditions of. employment” is a “labor dispute” as defined by statute,3 whether the work stoppage takes the form of a strike or a lockout, and without reference to such refinements as fluid negotiations, impasse, or good faith. See Adkins v. Indiana Employment Security Division (1946), 117 Ind. App. 132, 70 N.E.2d 31; Walter Bledsoe Coal Co. v. Review Board (1943), 221 Ind. 16, 46 N.E.2d 477.
The same is true in other jurisdictions. Except for some states having statutes specifically exempting lockouts from the definition of a labor dispute,4 the majority of jurisdictions hold a lockout may be a labor dispute within the meaning of the disqualification provision of unemployment compensation statutes.5
*498This is not surprising in view of the fact that the underlying intent of our Act, like others, is to deny benefits to those employees out of work by some voluntary act on their part. The declaration of policy in the statute relating to unemployment security is that . . the enactment of this measure is to provide for payment of benefits to persons unemployed through no fault of their own. . . IC 1971, 22-4-1-1 (Burns Code Ed.).
The justification for the enactment of such statutes is that the state should not interfere in labor-management controversies if a labor dispute has resulted in a work stoppage. See Artim Tramp. Sys., Inc. v. Review Board (1971), 149 Ind. App. 137, 271 N.E.2d 494, 499; Basso v. News Syndicate Co., Inc., 90 N.J. Super. 150, 216 A.2d 597 (1966) ; Shadur, Unemployment Benefits and the “Labor Dispute” Disqualification, 17 U. Chi. L. Rev. 294 (1949).
Voluntary action is taken by employees when they engage in a disagreement with their employer. As our Supreme Court said in Walter Bledsoe Coal Co. v. Review Board, supra:
Here was a disagreement between the employer and the employees as a whole as to wages; a demand by employees for new and different terms, and a refusal of the employer to comply, and a refusal of the employees to work as a consequence. It was a controversy. This was a strike in the ordinary meaning of the word. 221 Ind. at 21, 46 N.E.2d at 479. (Emphasis supplied.)
Whether strike or lockout, the rationale is the same.
Three years after the Indiana Supreme Court decided Walter Bledsoe Coal Co., the Appellate Court interpreted and followed it in Adkins v. Indiana Employment Security Division, supra; and concluded that under circumstances in which the employees were tardy and management removed their time cards during the course of a controversy over the use of a phone, it was immaterial whether the resulting unemployment was caused by a strike or lockout:
As we view the evidence in this case, it is immaterial whether appellants’ unemployment was caused by a “strike” *499or a “lockout” for the reason that in either event it is crystal clear that such unemployment was the direct and immediate result of the “controversy concerning terms and conditions of employment," which arose on November 9, 1945, between the employer and employees in the employer’s machine shop, and, therefore, such unemployment was the result of a “labor dispute” within the meaning and purview of Section 7 (f) (3) of the Indiana Employment Security Act. 70 N.E.2d at 35 (citation omitted). (Emphasis supplied.)
This well-reasoned case and many others collected in Annot., 63 A.L.R.3d 88, §§ 5-9 (1975) establish the most defensible rule, i.e., that once employees have voluntarily engaged in bargaining with management and a controversy arises during negotiations between the parties concerning the terms or conditions of employment and a work stoppage results from that controversy, a “labor dispute” exists which disqualifies the employees from benefits. Thus, they are not faultless in the statutory sense. Such a rule assumes of course that the immediate cause for the work stoppage, be it lockout or strike, arises from the controversy concerning terms or conditions of employment.
The question of whether a labor dispute exists in this sense is a factual inquiry for the Review Board. IC 1971, 22-4-17-12 (Burns Code Ed.).
It is obviously the intent of the Indiana Employment Security Act (the Act) that unemployed persons should receive benefits if their unemployment is “through no fault of their own.”6 The State through this Act indicates it will favor neither party to a “labor dispute.” So when employees voluntarily enter into bargaining with management to change the terms or conditions of their employment, which they have every right to do, and a work stoppage results from a controversy during such negotiations, how can it be reasonably maintained that the work stoppage is not due to a labor dispute?
*500Each party to such a controversy enters the negotiations with their respective weaponry, and if unable to obtain the desired objective by negotiation, seeks to do so by strike, lockout, or whatever. However the resulting unemployment comes about, there is a labor dispute and benefits should be denied without reference to such artificial refinments as fluidity of negotiations, impasse, etc., as required by Bootz.
TWO
Even if Bootz were deemed to be a correct statement of Indiana law, which it is not, this award should be reversed because the Review Board failed to make a finding that a threat of strike did not exist if Gold Bond refused to accept the Claimants’ terms.
As the avowed purpose of the Act is to compensate only those unemployed through no fault of their own, the reason for Gold Bond’s decision to lockout is relevant. If Gold Bond locked out the Claimants in the reasonable anticipation of an impending strike the Claimants are not faultless.
The Review Board acknowledged the importance of a strike threat and the reason for management’s decision to lockout in its specific findings in both Bootz Mfg. Co. v. Review Board, supra, and International Steel Co. v. Review Board (1969), 146 Ind. App. 137, 252 N.E.2d 848. Both of these cases contained a finding that “the record is devoid of any showing that the . . . employees had in any manner indicated that they might discontinue working if the employer did not accede to their terms.” While Bootz states no authority for its “impasse” standard, it recognizes by implication from this finding that a lockout precipitated by management’s reasonable expectation of a strike by its employees is justified and should preclude unemployment benefits.
Unlike the majority, I cannot conclude “. . . there was no evidence that Claimants had threatened to discontinue working at Gold Bond’s Shoals Plant unless the Company agreed to their terms.” The record reveals the local union had taken a *501strike vote and received strike authorization ... a similar vote had led to a strike at Shoals in April of 1969.
As the Review Board did not make a finding that the threat of a strike did not exist (indeed it could not in view of the evidence in the Record), the Bootz impasse rule does not apply . . . and the Review Board’s decision should he reversed as a matter of law.
For these reasons I would reverse the award of the Review Board and remand the case to the Review Board for proceedings not inconsistent with the views expressed in this dissent.7
Note. — Reported at 349 N.E.2d 258.
. Bootz Mfg. Co. v. Review Board (1968), 143 Ind. App. 17, 237 N.E.2d 597, reh. den., 143 Ind. App. 111, 238 N.E.2d 472.
. See International Steel Co. v. Review Board (1969), 146 Ind. App. 137, 252 N.E.2d 848; City Pattern & Foundry Co. v. Review Board *497(1970), 147 Ind. App. 636, 263 N.E.2d 218; Artim, Transportation v. Review Board (1971), 149 Ind. App. 137, 271 N.E.2d 494; Abbett v. Review Board (1971), 150 Ind. App. 202, 275 N.E.2d 827.
. IC 1971, 22-6-1-12 (c) (Burns Code Ed.) defines a “labor dispute” to include:
. . . any controversy concerning- terms 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 or not the disputants stand in the proximate relation of employer and employee.
. Connecticut, Pennsylvania, Kentucky, Maryland, Minnesota, Arkansas, Mississippi, New Hampshire and Ohio have such specific statutory exemptions for lockouts.
. The states holding a lockout may constitute a disqualifying labor dispute include Colorado, New York, Florida, Georgia, Idaho, Illinois, Indiana, Michigan, Missouri, New Jersey, Oregon, Texas, Washington, West Virginia, Wisconsin, Utah, California, Alabama and Nevada. See Annot., 62 A.L.R.3d 437 §§9-14 (1975) (and cases cited therein). See also 24 Words and Phrases, Labor Dispute, at 65 (1966).
The Supreme Court of Missouri recently refused to adopt the Bootz approach, preferring to avoid “. . . the pitfalls inherent in any effort to determine cause and fault in labor disputes.” Adams V. Industrial Com., 490 S.W.2d 77, 80 (Mo. 1973).
The Supreme Court of Missouri also stated
... in most jurisdictions in which the question has arisen . . . the "courts have"held that' a work stoppage resulting from a lockout arising from a disagreement in matters subject to collective bargaining is a labor dispute entailing disqualification from unemployment benefits.
Adams v. Industrial Corn., supra, 490 S.W.2d at 79.
. See IC 1971, 22-4-1-1 (Burns Code Ed.).
. The Review Board concedes in its brief at page 12 that “. . . a ‘lockout,’ as well as a strike, is presumptively a labor dispute [in Indiana]. Adkins v. Indiana Employment Security Dimision (1946), 117 Ind. App. 132, 70 N.E.2d 31, 34.”