(dissenting).
I am of the opinion that the terms of the contract in the instant case differ from those of the contract in Jackson v. Minneapolis-Honeywell Regulator Co. 234 Minn. 52, 47 N. W. (2d) 449, to such an extent that the latter cannot be said to be controlling. In the Honeywell case the company and the union agreed by their contract that the company “shall have the option to establish a vacation shutdown between June 1st and August 30th of the then current year” (italics supplied) and that “All employees shall take time off equal to the established length of the vacation shutdown, except those employees the Company may require to work * * Our decision there was based exclusively on this language in the contract. With reference thereto we stated (234 Minn. 54, 57, 61, 47 N. W. [2d] 450, 452, 454):
*363“This provision * * * uses mandatory. language and covers all employes, * * *.
*****
“This case thus narrows down to the proposition whether Jackson’s [the employee] unemployment * * * was * * * involuntary. * * * Absent this contract, there is no evidence of voluntary unemployment. * * *
*****
“* * * Jackson’s unemployment must be considered voluntary in view of the union contract * * (Italics supplied.)
In support thereof, we cited In re Employees of Buffelen Lbr. & Mfg. Co. 32 Wash. (2d) 205, 201 P. (2d) 194; Moen v. Director of Div. of Employment Security, 324 Mass. 246, 85 N. E. (2d) 779, 8 A. L. R. (2d) 429; Mattey v. Unemployment Comp. Board, 164 Pa. Super. 36, 39, 63 A. (2d) 429, 431; Paden City Pottery Co. v. Board of Review (Cir. Ct.) 8 CCH, Unemployment Ins. Rep. W. Va. par. 8090.
In each of such cases, as in the Honeywell case, to render a claimant eligible for unemployment benefits under the statutes involved, his unemployment must have been involuntary, and in each thereof, as in the Honeywell case, contract provisions for plant shutdowns or positive union requests therefor were held indicative of the employees’ consent that their vacations be taken while the shutdown was in effect.
Other decisions cited in the majority opinion in which unemployment benefits were denied almost without exception were based upon like contractural provisions or union requests. Thus, in Matter of Rakowski, 276 App. Div. 625, 97 N. Y. S. (2d) 309, the union, representing all employees, requested that the plant be closed for vacation purpose for all employees. In Matter of Naylor, 281 App. Div. 721, 117 N. Y. S. (2d) 775, affirmed, 306 N. Y. 794, 118 N. E. (2d) 816, the contract provided that when operations permitted closing of the plant “all vacations will be taken” then. A letter from the union requesting such closing for vacation purposes was held to indicate that a subsequent shutdown was at the union’s *364request. In re Gerlach (S. Ct. App. Div.) CCH, Unemployment Ins. Rep. N. Y. par. 8936, the contract provided the company might shut down for two weeks if thirty days’ notice to such effect were given. In Philco Corp. v. Unemployment Comp. Board, 175 Pa. Super. 402, 105 A. (2d) 176, contract provisions reserved to the company an option for a plant shutdown and thus, in the court’s opinion, distinguished the situation from that involved in Golubski Unemployment Comp. Case, 171 Pa. Super. 634, 91 A. (2d) 315, where compensation benefits were allowed because of the absence of such contract provisions. In I. M. Dach Underwear Co. v. Employment Security Comm. (Cir. Ct.) 4 CCH, Unemployment Ins. Rep. Mich. par. 8445, the court disqualified employees because of a contract provision that “All vacations shall be taken during the week in which July 4th shall fall and the week immediately following,” which the court construed as an agreement for voluntary unemployment during such period.
One appellate court gives support to the viewpoint of the the majority. The Arizona supreme court, in Beaman v. Bench, 75 Ariz. 345, 256 P. (2d) 721, denied unemployment benefits occasioned by a plant shutdown although no reservation therefor was contained in the contract. There the court found, however, that the wmon had proposed that all earned two-week vacations be taken either at times desired by individual employees or in the alternative that all employees take their vacations at the same time during July; that the company had thereupon advised the union that either alternative would necessitate a plant shutdown; and that the union representative had responded that he was cognizant that that might be the result. In giving support to its decision, the court noted the distinction between (75 Ariz. 349, 256 P. [2d] 724) “shutdowns forced by virtue of the terms of the contract and those which are wholly at the employer’s option,” clearly indicating that only the former would disqualify an employee from compensation benefits.
Apart from this decision, a few decisions of the lower Ohio court lend doubtful support to the majority viewpoint. Collopy v. Porter (Ct. of Common Pleas) 6 CCH, Unemployment Ins. Rep. Ohio, par. *3658260; Cambridge Glass Co. v. Bureau of Unemployment Comp. (Ct. of Appeals) 6 CCH, Unemployment Ins. Rep. Ohio, par. 8111; Elliott v. Bureau of Unemployment Comp. (Ct. of Common Pleas) 6 CCH, Unemployment Ins. Rep. Ohio, par. 8384.
The situation presented here is analogous to that in Golubski Unemployment Comp. Case, supra, where the contract reserved to the company the right to a shutdown during which employees eligible for vacations with pay were required to take their vacations. There the court determined that employees not within this class but who were required to “lay off” during the shutdown could not be said to be voluntarily unemployed during such period. In referring to the prior Pennsylvania case, Mattey v. Unemployment Comp. Board, supra, cited in the Honeywell decision, the Pennsylvania court stated (171 Pa. Super. 638, 91 A. [2d] 317):
“* * * that case is clearly distinguishable. * * * In the instant case the claimants never agreed that they should be laid off for two weeks, * * *. If it [the shutdown] did occur the men agreed only to apply their paid vacation to the two weeks shutdown. The employes were available for work and their failure to work was because the employer furnished no work.”
In two later cases, Philco Corp. v. Unemployment Comp. Board, supra, and General Elec. Co. v. Unemployment Comp. Board, 177 Pa. Super. 49, 110 A. (2d) 258, the Pennsylvania court again clearly recognized the difference between situations such as those involved in the Mattey case and those in the Golubski case and reaffirmed the correctness of its rule when applied to facts such as were present in the latter.
In American Bridge Co. v. Review Board, 121 Ind. App. 576, 98 N. E. (2d) 193, the Indiana appellate court recognized differing principles involved in these distinctive situations. There the contract reserved to the company the right of a temporary shutdown between certain dates which might be designated as the vacation period for employees eligible for vacations with pay. In holding that such provisions did not disqualify employees not within the eligible *366class, the Indiana court stated (121 Ind. App. 580, 98 N. E. [2d] 195):
“* * * there is no question but that the shutdown occurred as a result of voluntary action of the company for the purpose of taking inventory, and as stated in the notice, insofar as possible, the period will be designated for vacations. * * * By reason of the terms of the employment contract with the union, such period could only be designated for employees of the plant who were eligible for vacations.
* tt # * *
«* * * There is nothing within the provisions of the union contract which would give rise, even inferentially, to a reasonable construction that employees who were not eligible for vacations were affected in any way by the designation of the vacation period for eligible employees. Certainly, the employees who were not eligible for vacation have not by any reasonable interpretation to be placed upon the terms * * * of the bargaining agreement consented to any action by the company which would permit the designation of a period of vacation without pay for them.”
In Schettino v. Administrator, 138 Conn. 253, 83 A. (2d) 217, under the contract certain employees were eligible for one week’s vacation with pay, and the company had reserved the right to a plant shutdown during the week it would designate for such vacation. There it was held that a shutdown beyond this one week qualified all such employees for unemployment benefits for the period following that of the paid vacation week. While the decision was in part based upon a somewhat dissimilar Connecticut statute, the court clearly expressed the principle which should be applicable in the instant case in its statement that (138 Conn. 258, 83 A. [2d] 219):
tt* * « The essence of the agreement entered into between the union acting as the agent of the plaintiff and the company was, so far as it affected the plaintiff, nothing more than that he should have one week’s vacation with pay and that the company should have the right to designate as that week one of the weeks during which it might be shut down for other purposes. It did not amount to a vol*367untary relinquishment by him of his employment during the second and subsequent weeks of shutdown.”
In Glover v. Simmons Co. (Super. Ct. App. Div.) 5 CCH, Unemployment Ins. Rep. N. J. par. 8248, the agreement provided for paid vacations of one week for employees with one to five years of service; two weeks for those with five years or more; and three weeks for those with at least 15 years’ employment. It was stipulated therein that employees entitled to one week would take this week beginning July 6; that those entitled to two weeks would be off duty for two weeks beginning July 6; while those entitled to three weeks would take the first two during the same two weeks of July and the third at a time to be selected by management. A plant shutdown was ordered for July 6. An employee who had been employed for less than a year and was not qualified for a vacation with pay sought unemployment benefits because thereof. Upholding his claim therefor, the New Jersey court stated:
“* * * if there were no contract with the union and the employer closed the plant in order to effectuate a policy of giving vacations to employees with a year’s service, unqualified employees would be involuntarily unemployed during the shutdown period * *
While the New Jersey court’s decision hinged upon a statutory prohibition against waiver of unemployment benefits, the court there stated:
“Our conclusion would be the same even if the statute did not contain the non-waiver provision. * * * Some [courts] take the position that persons who do not meet the contract requirements for vacation are voluntarily unemployed because they consented through their union to the plant shutdown. Others take the more realistic view that employees without right to vacation under the contract are out of work through no fault of their own * * *. We believe that the latter view is more consonant with the spirit of our unemployment compensation law.”
See, Hubbard v. Unemployment Comp. Comm. 328 Mich. 444, 44 N. W. (2d) 4. The principles above expressed seem clearly appli*368cable to the facts in the instant case. See, 36 Minn. L. Rev. 426; Annotation, 30 A. L. R. (2d) 366.
That the distinctive factual situations which give rise to the two lines of authority above referred to distinguish the instant ease from the Honeywell case appears conceded by the majority opinion. There it is stated:
“In the case now before us the contract does not expressly state that all employees shall take time off during the vacation shutdown, nor does it expressly state that the company may shut down the plant for vacations. * * * The main distinction between the two contracts is that in the Honeywell case the company had the option of closing the plant.”
That this factor formed the sole basis for the Honeywell decision is clearly manifested by the language therein that (234 Minn. 57, 47 N. W. [2d] 452) “Absent this contract, there is no evidence of voluntary unemployment.” This limitation is sought to be avoided in the majority opinion by the statement that the employees, by signifying in large number their intentions of taking their vacations as authorized by the contract, in effect, exercised “the option to force a shutdown.” But the company must have contemplated that employees entitled thereto would seek their vacations during the period specified therefor, and had it desired it could have reserved shutdown privileges by reason thereof. However, it reserved only the right of “trying to work out satisfactory vacation dates” with employees entitled to two weeks’ paid vacation. With the express contract provisions in mind, how can the exercise of a right granted thereby be construed as union authorization of a plant shutdown?
Likewise, there does not appear any basis for the suggestion that in view of the Honeywell case, if the union had intended that the company furnish employment during a plant shutdown for employees not entitled to vacations, it should have so provided. The very significant statement in the Honeywell case that “Absent this contract [with shutdown privileges reserved to the company] there is no evidence of voluntary unemployment” quite definitely forecloses this contention. Rather, such language would clearly impose upon the *369company the burden of inserting a contract provision for plant shutdown during vacation period if it wished safeguards therefor. The contract is clear and contains no such reservation. It should not be subjected to a construction which by implication adds to it the feature which formed the sole basis for the Honeywell decision.