(dissenting).
In the matter of the Kabes appeal, I would reverse.
On the morning of September 13, 1980, all but one of the pressmen and paper handlers scheduled to work that day reported prior to the commencement of the picketing by the striking union. Evidence contained in the record suggests that once picketing began, however, the employer’s representatives were informed by representatives of the pressmen’s union that that union membership would be honoring the other’s picket line.
While these employees were present and willing to perform their normal duties, confusion attended the commencement of the strike and management appears to have had difficulty in determining a method of dealing with the strike and the volume of papers it intended to publish. A variety of instructions were given to the shift foreman by the employer’s operations director.
Finally, when union and managerial personnel were unable to agree upon a response to the strike, the employer’s employee relations director met with the union president and other union representatives to renew its most recent request for a press run of 20,000 to 40,000 newspapers. The union personnel conferred and responded that they would be unable to guaranty the safety of the presses if a press run were made. The Tribune’s representative assured union representatives that the Tribune would assume liability for the presses, but the union refused to make the requested run.
At approximately 10:00 a. m., the foreman was informed by his employer that when the pressmen had completed the work they were willing to perform, they could leave the premises for the day. The employees were paid for the remainder of the full shift and most of the employees left the premises at either 10:00 or 11:30 a. m.
Although members of this union were scheduled to report during the course of the strike, not one pressman or paper handler reported to work on the evening of September 13 or at any other scheduled shift during the strike. The record indicates that a number of paper handlers “called in sick” during the first week after the commencement of the strike. The Tribune continued to publish throughout the strike, using nonunion and managerial personnel to perform the work normally done by these employees.
Claim petitions were filed on behalf of all 199 members of this union. A claims deputy determined that 196 of these member employees were disqualified from the receipt of benefits because they had “participated” in the strike by their failure to accept and perform customary and available work for their employer. This determination was reversed by the Appeal Tribunal which concluded that none of the 199 claimants was participating in the strike.
*192The employer took a further appeal to the Representative of the Commissioner who reversed that determination and concluded that the employees had participated and were thus disqualified.
The critical inquiry is whether the employer sustained its burden of establishing that the claimants “participated” in the strike and were therefore disqualified from the receipt of benefits. Minn.Stat. § 268.-09, subd. 3 (1980). The employer, to have satisfied this standard, must have shown that there was customary work available and that the employees failed or refused to perform it.
The substantial evidence contained in the record requires the conclusion that the burden of proof was not sustained. The claimants here appeared for work as scheduled on the date the strike commenced and began to perform their assigned tasks. Any cessation in performance must be attributed to the contradictory orders these individuals received from the management and their union representatives, as well as to the ultimate management directive that they could all leave work well in advance of the formal end of their shift. These employees were not informed that they should report again as regularly scheduled and, in fact, with regard to certain pressmen, no advance work schedule had been prepared.
While the confusion which attended the strike in all likelihood disrupted the employer’s orderly conduct of its newspaper operations, these individuals should not be denied benefits solely upon that basis and, instead, the employer failed to establish that it properly conveyed to the authorized individuals or the specific employees that their customary work was available to them and would be throughout the course of the strike.