(dissenting). The strike began June 22, 1958. The applicants (individual appellants here) went out on strike. After that the employer eliminated the jobs of two striking employees and replaced the others. There were negotiations until late in August. On September 10th the employer wrote a letter to the union. It is clear that the principal message was the employer’s claim that the union did not represent a majority of employees eligible to vote and notice to the union that the employer would not bargain with it unless proof to the contrary were submitted. It is not clear whether the employer was counting the striking employees as if still employees, but the employer did say, “. . . a substantial number of new employees have been hired on a permanent basis to replace the striking employees.” (Emphasis supplied.) The italicized words made it clear that the striking employees could have no reasonable expectation of being hired to perform their former jobs even if the strike terminated immediately.
The employer had created a pension trust, the terms of which are not in evidence. On October 9th, the trustees *192wrote to the applicants that the “pension trust agreement provides that in the event of termination of employment” the trustees shall transfer the policies to the participants and that, “You left the employ of the creamery on June 22, 1958, and you are therefore entitled to receive the insurance policies issued to you under the terms of that agreement.” The applicants accepted the policies. The record does not show the definitions of “employment” or “employ” in the agreement.
In December there was an indication that some or all of the applicants desired to return to work and there was an exchange of correspondence. The employer wrote a letter, stating in part, “If any of the former employees wish to make application, would you kindly have them do so, . . . and their application will be given consideration when and if jobs for which they are qualified are available.” (Emphasis supplied.)
There is no evidence that the employer at any time after September 10th advised the applicants that they were still considered to be employees for any purpose nor that any application for employment by any of them would be treated differently from an application received from a person who had not previously been employed by this employer.
Concededly the picketing of the employer and the dispute continued until the time of the hearing.
The appeal tribunal found, in part, that:
“In this case the employer’s action in permanently replacing the employees and its notification that it would no longer bargain with the union of which they were members constituted a discharge of the employees. This action terminated the employee status of the employees and sec. 108.04 (10) of the statutes was not applicable to them after week 37 of 1958.1
*193“The appeal tribunal therefore finds that in week 26 of 1958 [when the strike began] the employees left or lost their employment because of a strike or other bona fide labor dispute that was in active progress in the establishment in which they were employed, within the meaning of sec. 108.04 (10) of the statutes, but that their unemployment after week 37 of 1958 was not due to such strike or other bona fide labor dispute.
“The appeal tribunal further finds that in week 37 of 1958 the employer discharged the employees, but not for misconduct connected with their employment, within the meaning of sec. 108.04 (5) of the statutes and that they are not disqualified from receiving unemployment benefits by sec. 108.04 (10) of the statutes after that week.”
The Industrial Commission affirmed the decision of the appeal tribunal.
Sec. 108.04 (10), Stats. 1957, provides:
“An employee who has left (or partially or totally lost) his employment with an employing unit because of a strike or other bona fide labor dispute shall not be eligible for benefits from such (or any previous) employer’s account for any week in which such strike or other bona fide labor dispute is in active progress in the establishment in which he is or was employed.”
“Employment” in ch. 108, Stats., means “service . . . performed by an individual for pay.” 2
This court has recognized that an employee status or relationship of employer and employee ordinarily continues to exist after “employment” in the sense of service for pay has ceased because of a strike; that the ineligibility for benefits imposed by sec. 108.04 (10), Stats., applies to those persons retaining an employee status who are out of work due to a bona fide labor dispute, but that it ceases to apply *194if the employer elects to terminate the employee status during the progress of the labor dispute.3
It must be evident that the letter of September 10th, and the hiring “on a permanent basis” of replacements for applicants, to which the letter refers, either terminated the employee status of applicants or left it a most-tenuous relationship.4 The later action of the trustees of the pension trust is consistent, so far as the record shows, with a termination of employee status. The reference to applicants in the December letter as “former employees” is consistent only with the proposition that the employee status had ceased. The appeal tribunal and commission were not obliged to accept the explanation that the term was not literally intended.
In my view the evidentiary facts, though undisputed, permit conflicting reasonable inferences to be drawn, and it was for the appeal tribunal and the commission to choose.
“Where undisputed facts permit of different inferences a question of fact and not of law is presented.” 5
“However, when facts are not in dispute but permit the drawing of different inferences therefrom, the drawing of one of such permissible inferences by the commission is an act of fact finding, and the inference so derived constitutes a finding of an ultimate fact and not a conclusion of law.” 6
*195I would reverse the judgment and direct affirmance of the decision of the commission.
I am authorized to state that Mr. Justice Brown and Mr. Justice Dieterich join in this opinion.
The week in which September 10th fell.
Sec. 108.02 (5) (a), Stats.
Marathon Electric Mfg. Corp. v. Industrial Comm. (1955), 269 Wis. 394, 407, 408, 69 N. W. (2d) 573, 70 N. W. (2d) 576.
It has been suggested that permanent replacement of a striking employee may sever the employer-employee relationship. Greene v. Department of Industrial Relations (1955), 38 Ala. App. 199, 83 So. (2d) 360; Ayers v. Nichols (1955), 244 Minn. 375, 381, 70 N. W. (2d) 296, 299.
Eckhardt v. Industrial Comm. (1943), 242 Wis. 325, 329, 7 N. W. (2d) 841.
Gant v. Industrial Comm. (1953), 263 Wis. 64, 69, 56 N. W. (2d) 525.