dissenting.
I respectfully dissent.
*422The principal opinion would reverse the judgment of the Circuit Court of the City of St. Louis that the account of respondent, Pulitzer Publishing Company (hereinafter, “Pulitzer”) with the Division of Employment Security should not be charged under § 288.070.7, RSMo 1978, with the payments made by the Labor and Industrial Relations Commission, (hereinafter, the “Commission”) to nonstriking employees of Pulitzer during the suspension of publishing operations at Pulitzer’s plants growing out of the Teamsters’ dockmen’s strike of August to October of 1973. The question whether Pulitzer’s account should be charged with the payments made by the appellant Commission during the work stoppage depends on whether the claimants were ineligible for benefits under § 288.040.5, RSMo 1978. The trial court found that the nonstriking individual claimants were ineligible for benefits as a matter of law because they were “directly interested” in the outcome of the Teamsters’ negotiations. In an opinion by A. Stockard, Sp. J., filed July 3, 1979, a panel of the Court of Appeals, Eastern District, unanimously would affirm the judgment of the circuit court. In my opinion, the judgment of the circuit court was correct and should be affirmed. The opinion which follows uses much,of the language and analysis found in the opinion of the court of appeals, without benefit of quotation marks.
It should be noted at the outset that the individual claimant-employees who received unemployment compensation because of the suspension of production by Pulitzer will keep the compensation paid to them regardless of the outcome of this appeal. § 288.-070.6, RSMo 1978. Consequently, although the “claimant-employees” as a group have appealed from the judgment of the circuit court, they have no interest in the outcome of this litigation. There is, however, a jus-ticiable controversy between the Commission and Pulitzer because in the event Pulitzer prevails in this appeal,' its account with the Division of Employment Security will not be charged with the payments made to claimants, § 288.070.7, RSMo 1978, and the amount of charges against Pulitzer’s account áffeets the tax rate it must pay, under §§ 288.113 to 288.123, RSMo 1978.
The Commission found that the claimants were unemployed due to a stoppage of work which existed at the premises where they were last employed, and which was caused by a labor dispute between Pulitzer and Teamsters Local 610. This finding is supported by substantial evidence. It is of no consequence that the unemployment of claimants was directly precipitated by the action of Pulitzer in suspending publication of its newspaper. The underlying cause of the work stoppage was the labor dispute. Adams v. Industrial Commission, 490 S.W.2d 77, 80-81 (Mo.1973); Poggemoeller v. Industrial Commission of Missouri, 371 S.W.2d 488, 500 (Mo.App.1963).
The Commission also found that nonstriking claimants belonged to “skilled or highly skilled unions” and “were not of the same grade and class as the members of the union engaged in the labor dispute.” Consequently, the Commission found that they were not ineligible for benefits by reason of § 288.040.5(l)(b), RSMo 1978.
One of the issues under negotiation between Pulitzer and Teamsters Local 610 was whether employees with ten years’ seniority would be given a fifth week of vacation. Pulitzer had agreed to give all of its employees with ten years seniority a fifth week of vacation if it gave such benefits to the striking Teamsters. Pulitzer contends that this agreement gave the nonstriking employees a “direct interest” in the labqr dispute under § 288.040.5(l)(a), RSMo 1978. The Commission adopted the finding of its referee that Pulitzer “had either orally or in writing or by both means agreed with these unions [the ones to which claimants belonged] that if any other union did successfully negotiate an agreement in relation to the fifth week vacation issue that each of the unions would receive a like agreement on the issue for their members.” The Commission’s referee made the additional finding, however, that he was “not convinced that the issue involving a fifth week of vacation for certain employees *423with seniority was a principal issue between the striking union and the employer,” and that he was not convinced that Pulitzer’s oral and written agreements to extend to each of the members of the nonstriking unions the fifth week of vacation for employees with ten years’ seniority “amounted to a direct interest in the labor dispute by the claimants or members of the unions to which they belonged.”
The trial court ruled that the Commission’s conclusion that claimants had no “direct interest” in the labor dispute that caused the stoppage of work was “inconsistent with the facts and at variance with the judicial construction of the phrase.” It also ruled that the Commission’s conclusion “that claimants were not of the same class as the striking dockmen is in conflict with judicial interpretation of that term.” I agree with the trial court on both issues.
The Commission found as a fact that there was an agreement with all the other unions to which claimants belonged that if the fifth week of vacation was granted to one union, it would be granted to all. It is true that there was conflicting evidence as to this fact issue, but the finding of the Commission is amply supported by substantial evidence, and therefore it is binding on the reviewing court. § 288.210, RSMo 1978. The Commission also found that if the negotiation for the fifth week of vacation time had been successful, the results would have benefitted “some of the claimants or members of the unions to which they belonged.”
Robert A. Steinke, Executive Secretary of the St. Louis Newspaper Guild, Local 47, identified Employer’s Exhibit 12, and testified that it was marked “Memorandum of Understanding,” dated April 5,1972, that it was a document that pertained to vacation schedules, and particularly, to a fifth week of vacation, and that it was signed on behalf of the St. Louis Newspaper Guild, by Mr. Wippold, then president of the St. Louis Newspaper Guild. That agreement provided that if any union obtained a fifth week of vacation, the same “shall also be provided” to employees who are members of the Guild.
Marvin Kanne, Director of Labor Relations of the St. Louis Globe-Democrat, identified Employer’s Exhibit 13, and testified that it was a letter dated April 27, 1973, that it was written as a result of an agreement regarding the fifth week of vacation issue reached during negotiations with St. Louis Typographical Union, Local 8, prior to its current contract. Raymond T. Nelke, President of St. Louis Typographical Union, Local 8, testified that he requested that the letter be written.
Mr. Kanne identified Employer’s Exhibit 15, as a letter dated September 1,1972, and testified that the letter was written as the result of an agreement regarding the fifth week of vacation issue reached during negotiations with International Association of Machinists, District 9. Mr. Roy D. Hawkins, a business representative of the International Association of Machinists and Aerospace Workers, District 9, (IAM), testified that the letter represented an agreement reached in meetings with representatives of Pulitzer. Mr. Hawkins testified that he received the letter on September 1, 1972, and that it reflects an agreement previously reached between IAM and the representatives of Pulitzer in bargaining sessions and that the letter was written at the request of Mr. Hawkins.
Mr. Kanne testified that Employer’s Exhibit 14, was a letter dated October 6, 1972, and that it was written as the result of an agreement concerning the fifth week of vacation issue reached during negotiations with St. Louis Paperhandlers and Electro-typer’s Union, Local 16. The President of that union, William Aubuchon, testified that the letter was an offer made by Pulitzer, that it confirmed Pulitzer’s position but did not confirm the union’s position, and that Aubuchon could not recall whether he had requested that that letter be written.
Mr. Kanne testified that agreements such as those reflected in Employer’s Exhibits 12 through 16 were made with each of the other unions regarding a fifth week of vacation. He testified that in those cases where letters were requested by the unions *424they were written, and that in. the other cases no letter was sent. Mr. Kanne’s testimony regarding the existence of written agreements on the fifth week of vacation issue was not contradicted. With respect to unwritten understandings with the other unions regarding the fifth week of vacation issue, the evidence was as follows.
Charles R. Witt, Vice President of Graphic Arts International Union, Local 505, testified and presented no evidence to contradict Kanne’s testimony regarding an oral understanding concerning the fifth week of vacation.
Carl N. Stuard, Special Representative of the International Brotherhood of Electrical Workers, Local 1, testified, but could not recall whether or not an oral agreement concerning the fifth week of vacation had been made with that union.
William F. Metz, Jr., President of St. Louis Mailers Union, Local 3, testified that there was no oral agreement reached between his union and Pulitzer regarding the fifth week of vacation, and indicated that his union did not want Pulitzer to send' a letter confirming the existence of such an agreement. Mr. Kanne testified that such an agreement did exist.
The foregoing evidence was sufficient to support the referee’s finding that Pulitzer had made an agreement — and not merely an “unsolicited unilateral offer” — that if any union obtained a fifth week of vacation, the same would be provided to employees who are members of the other unions.
In an apparent attempt to avoid the inevitable result which would necessarily flow from what it found to be the facts, the Commission declared that it was “not convinced” that the issue involving a fifth week of vacation was “a principal issue between the striking union and the employer,” and its ultimate decision that claimants had no direct interest in the labor dispute seems to be premised upon this finding. Whether this is permissible in view of the findings of fact by the Commission is a question of law reviewable by this Court.
I am not convinced that the evidence supports the determination that the vacation demand was not a principal issue; in fact that finding appears contrary to the overwhelming weight of the evidence. At the beginning of the negotiations there were many issues. The issue of the additional vacation period remained unresolved until the final day of the strike. However, whether the vacation issue was a “principal issue” or not is irrelevant to the outcome of this case. Perhaps the vacation issue was, as the principal opinion suggests, merely one item on a “laundry list” or one of many “bargaining chips” which the striking dock-men expected to be “expended in the bargaining process.” However, there is no statutory basis for finding a nonstriking employee eligible for unemployment benefits when that employee has a direct interest in the dispute, merely because the issue in which the employee has an interest is not a “principal issue” in the negotiations. Section 288.040.5(1), RSMo 1978, makes, no such distinction. We are not at liberty to create eligibility for benefits through judicial legislation.
Despité the Commission’s finding that Pulitzer had agreed with the nonstriking unions that the fifth week of vacation would be granted to all the unions if it was granted to one union, the Commission found claimants eligible for benefits.1 The circuit court found the claimants were ineligible for benefits under § 288.040.5(l)(b), RSMo 1978, on the ground that they belonged to “a grade or class of workers of which . there were members employed at the premises . . . [who were] directly interest*425ed in the dispute.” I would affirm the judgment of the circuit court in this regard. If some of the members of the unions to which claimants belonged were directly interested in the dispute, then those members constituted a “class of workers” within the meaning of the statute. Nothing in the applicable statutory provisions authorizes a contrary determination.
In reversing the circuit court’s judgment and finding the claimants eligible for benefits, the principal opinion concludes that the employees who had an interest in the fifth week of vacation did not constitute a grade or class of workers in the sense contemplated in § 288.040.5(l)(b), RSMo 1978. The principal opinion reaches this result by focusing attention on the types of duties and functions that the striking and nonstriking employees performed. Contrasting the skilled and highly skilled character of the nonstriking claimant-employees with the unskilled character of the striking dockmen, the principal opinion concludes that “[tjhere was ample support in the record for the commission’s finding, that the non-striking employees were not of the same grade or class as the striking Teamsters dockmen.” In drawing this conclusion, the principal opinion vigorously distinguishes O’Dell v. Division of Employment Security, 376 S.W.2d 137 (Mo.1964) on the ground that both the striking and nonstriking employees in O’Dell had similar duties, worked side by side, and had the same bargaining agent. This attempt to say that the class of workers who would gain a contractual right to a fifth week of vacation upon attaining ten years’ seniority if the striking dockmen won that benefit was not a class because they shared little else in common with the dock-men emphasizes irrelevant differences to the exclusion of relevant similarities.
The determinative question is whether, under the factual situation as found and determined by the Commission, claimants were “directly interested” in the labor dispute within the meaning of § 288.040.5(1), RSMo 1978. In Poggemoeller v. Industrial Commission of Missouri, 371 S.W.2d 488, 505 (Mo.App.1963), it is stated that “[a] claimant is directly interested in the labor dispute when he stands to gain or lose by the outcome of the dispute,” and “when his wages, hours or working conditions will be affected by the outcome of the dispute.” The findings of fact by the Commission in this case clearly establish as a matter of law that claimants each have a direct interest in the labor dispute that brought about the stoppage of work.
In its brief before this Court, the Commission contends that it “would be unwise to set a legal precedent that an employer by making an unrequested unilateral offer to a union could thereby on his own create a direct interest on the part of the members of such union to a labor dispute with another union.” The argument that the direct interest here involved was unilaterally created by Pulitzer, and that it was a mere offer, contradicts the Commission’s finding that there were in fact oral or written agreements with the unions to which claimants belonged pertaining to the additional vacation time. The principal opinion adopts the Commission’s argument nearly verbatim. The principal opinion surveys the evidence contrary to the Commission’s finding that Pulitzer had agreed to extend the vacation benefit to all the unions if it gave that benefit to one union, and concludes that “[t]he commission could have considered that any direct benefit to claimants from the vacation issue was speculative.” In effect, the principal opinion takes the position that the Commission’s legal conclusion on what constitutes a “direct benefit” is binding on this Court, but that the Commission’s factual finding that Pulitzer had agreed orally and in writing to extend the vacation benefit to all its employees if it gave the benefit to the Teamsters is not binding on this Court. This position inverts the normal standard for judicial review of administrative action. The circuit court held that the Commission’s factual finding was binding on it. Perhaps, under the evidence, the Commission could have found that no oral agreements existed, but it did not do so. In fact, it found to the contrary. However, assuming it had found no oral agreements, the above argument of the *426principal .opinion and of the Commission disregards the finding of the Commission that with some of the unions Pulitzer had entered into a written agreement pertaining to additional vacation time.
The Commission also argues that its finding that claimants were not “directly interested” in the labor dispute is a finding of fact, and as such is binding on this Court. It cites Poggemoeller v. Industrial Commission, supra. The circumstances of this case clearly distinguish it from the Poggemoeller case. Here, the Commission found as a fact that in the event the striking union was successful in its demand as to the vacation issue it would benefit “some of [the striking union’s] members and thereafter some of the claimants or members of the unions to which they belonged.” The Commission erroneously determined that because the issue involving a fifth vacation week was not a “principal issue” in the negotiations with the striking dockmen, the nonstriking claimants were not “directly interested” in the labor dispute which caused the work stoppage. Whether the Commission made a correct application of law to the facts is an issue of law which is subject to judicial review.
I would hold that the claimants, as members of unions with which the employer had agreed to extend the benefits of the additional vacation period if incorporated into the contract with Teamsters Local 610, as found by the Commission, were “directly interested in the labor dispute which caused the stoppage of work” as that term is used in § 288.040.5(1), RSMo 1978, and were therefore ineligible to receive unemployment benefits. Consequently, I would affirm the judgment of the circuit court that Pulitzer’s account with the Division of Employment Security should not be charged with the payments made by the Commission during the Work stoppage.
In conclusion, I would dismiss the appeal by the claimant-employees because there is no justiciable controversy as to them. I would affirm the judgment of the circuit court as to the appeal brought by the Commission.
. The Industrial Commission did not consider whether the act of the St. Louis Newspaper Guild in posting notices that it “would sanction picket lines of Local 610” constituted participating in the strike within the meaning of § 288.040.5(1)(a), RSMo 1978. The stated purpose was to permit members of the Guild to refuse to cross the picket lines. Voluntary refusal to cross a picket line by a nonstriking employee does constitute participation. Meyer v. Industrial Commission of Missouri, 240 Mo. App. 1022, 223 S.W.2d 835, 838 (1949). Also, when the Guild instructs its members not to cross a picket line it constitutes participation. Basso v. News Syndicate Co., Inc., 90 N.J.Super. 150, 216 A.2d 597, 605-06 (1966).