Dissenting Opinion.
Hunter, J.— I respectfully dissent from the majority opinion not only because I feel that the characterization of a laid-off person as being no longer an employee is legally wrong, but also because I fear that the opinion has opened the door for divers adverse consequences.
In order to more readily understand the fact situation the referee’s findings of fact which were accepted by a majority of the Review Board are set out in this dissent, for as stated by Judge Kelley in the majority opinion, we are bound to accept such fact situation for the purposes of this appeal.
Portions of those findings which in my view present the serious questions here are as follows:
The referee found that in November, 1960 the employee claimants were
“ . . . laid off by the employer for an indefinite period of time due to a reduction in force.
The referee further finds that the employes of the abovementioned employer were represented by a *472bargaining agent, the United Steelworkers of America, which said bargaining agent, prior to January 4, 1961, had negotiated a contract covering wages and working conditions with the employer, which said contract was in full force and effect on that date.
The referee further finds that under the terms of said contract, said union, representing the employes, agreed that during the existence of the contract there would be no strikes, work stoppages, or interruption of work. It further provided that no employe should participate in any such activities.
The referee further finds that immediately prior to the 4th day of January, 1961, a labor dispute arose between said employes and the company in reference to the method of laying off employes, although the record indicates that the employer was violating no provisions of the contract in the method employed by the employer in laying off certain employes.
The referee further finds that on the 4-th day of January, 1961, approximately forty-five (45) employes established picket lines in front of the entrance to one of the employer’s plants, and actively and physically prevented employes from entering the plant during that day and during a portion of the following day; that claimant was one of the employes involved in this activity.
The referee further finds that the United Steelworkers of America did not instigate, participate in, or encourage the picketing activities and, in fact, exerted its efforts to bring such activities to a halt and urged men to return to their jobs.
The referee further finds that the employer disciplined all employes involved and discharged the claimant on the 23rd day of January, 1961, solely and as a direct result of claimant’s participation in the unauthorized strike.
The action of the forty-five (45) employes was not a “strike”, “walkout”, or “labor dispute”, as those terms are commonly used, for the reason that such activity was neither authorized, condoned or en*473couraged by the bargaining agent of the employes. In fact, claimant’s activity ivas an open and direct breach of the labor-management contract, by which claimant and all others were bound, and was accomplished in open defiance to the terms of the contract and to the ivishes of claimant’s own union. Further, all employes of The Youngstown Sheet and Tube Company had been warned by letter^ on October 27, 1960, of the consequences of participation by employees in work stoppages.
We are of the opinion that it was impossible for the claimant to have committed any act of misconduct while in a laid off status and while he was performing no services for his former employer, and while the former employer was paying no remuneration to the claimant, which would entitle the employer to legally discharge the claimant and terminate benefit rights that had already been established by the Division....” (my emphasis).
The appellees in defiance of both their employer, The Youngstown Sheet & Tube Company, and their union, the United Steelworkers of America, participated in unauthorized picketing of the plants. The ironical part of the referee’s findings, the board’s order and the majority opinion of affirmance is that the employees were thus permitted to picket the plant in an attempt to force their employer to grant them rights which they claimed under the collective bargaining agreement even though their layoff was occasioned by a reduction in force and in compliance with seniority rights under the agreement.
They now come forward and deny they were employees even though it is readily apparent that at the time of their picketing they recognized and claimed their status in the employer-employee relationship under the collective bargaining agreement, i.e., by attempting to force their premature recall to the job in viola*474tion of the contract. It seems intuitively obvious that the referee’s decision as affirmed by the board and majority opinion of this court have contravened logic and justice by allowing- a laid~off employee to openly defy his employer in an “illegal” and “wildcat” labor dispute knowing that the employer has no choice but to fulfill the contractual obligations owed to the employee at his (the employee’s) option regardless of the scope, time and extent of the employee’s misconduct, and yet still be eligible for unemployment benefits notwithstanding his discharge for such subsequent “misconducts”.
The law seems to be well settled that an employee who breaks his employment contract and is discharged therefor is ineligible for unemployment compensation benefits. Tyler v. Review Bd., Ind. Emp. Sec. Div. et al. (1956), 126 Ind. App. 223, 132 N. E. 2d 154; Chrysler Corporation v. Review Board of the Ind. Emp, Sec. Div. (1962), 134 Ind. App. 1, 185 N. E. 2d 25. Therefore it seems illogical to me to arrive at an opposite conclusion as in the majority opinion under a more grievous factual situation by reason only of the fact of employee’s laid off status. The employer here was subjected to more far-reaching adverse consequences by the illegal and unauthorized activity of the appellees than by the mere infraction of company rules as was the fact in the above cited cases.
It would seem apparent that an individual’s actions in joining with others on his employer’s premises and attempting by means of illegal picketing and force, in direct violation of the collective bargaining agreement, to effectuate his premature recall to his job, which purpose if accomplished would amount to a further violation of the contract, should be construed to be “misconduct in connection with his work” within the meaning of *475the statute sufficient to disqualify the claimant from unemployment compensation benefits.1
Here the appellees in my opinion were still in a contractual relationship with the appellant at the time of their illegal activity and admitted as much by (1) the purpose of their illegal picketing and (2) by subsequently returning to work under their seniority rights legally guaranteed by the collective bargaining agreement.
However, the majority in upholding the Review Board’s order has held as a matter of law that there must be (1) actual or contractual control by the employer (2) the employee must be performing services for his employer and (3) receiving pay for the work performed, and that there must be a concurrence of all of the above facts with “misconduct” in point of time. It seems apparent that the Board of Review in its findings and order have, in reaching such a conclusion, *476written conditions in the statute that were not written there by the legislature and further in adopting such conditions have literally destroyed any legal significance of the phrase “misconduct in connection with his work” except in concurrence with the above three conditions.
Nowhere in Section 1501 of the Act, Burns’ Ind. Statutes (1951 Repl., 1959 Supp., Section 52-1539) does the legislature say that the Board’s announced conditions above must be in concurrence with such misconduct and with as much immediacy as is indicated by the board. It would seem conclusive that if the Indiana General Assembly intended such conditions, they would have been set forth in the Act. The appellant asserts with appropriate reasoning that if such had been the intention of the legislature it could have very adequately supplied such limiting language and narrowed the disqualifying provisions, however, it chose to use the very broad language of “in connection with his work” as a disqualifying factor. The board by its decision has almost conclusively limited the disqualifying “misconduct” to occurrences while on shift or at the most between shifts and again it is reiterated that if the legislature had so intended it could have stated so specifically in the Act itself which to the moment it has not seen fit to do.
The National Labor Relations Board has carefully and significantly refrained from creating such illogical situations by consistently holding in their cases that a laid-off worker remains in the status of an employee with his employer. Paragon Rubber Co. (1938), 6 N.L.R.B. 23; Unit Cast Corp. (1938), 7 N.L.R.B. 129; American Cyanamid Co. (1940), 19 N.L.R.B. 1026; Sangamo Electric Co. (1954), 110 N.L.R.B. 1; Aroostook Federation of Farmers, Inc. (1957), 117 N.L.R.B. 31; General Motors Corp. (1955), 113 N.L.R.B. 876. *477I feel that this is the only result that can lead to a semblance of logical continuity in this area of law.
In concluding it should be noted that the appellee, Board of Review, states in its brief that the claimant appellees were the type of persons for which the Indiana Employment Security Act was enacted, i.e., for persons laid off due to lack of work and that the declared public policy of the Act was for just this type of protection against the great hazards of our economic life because they were laid off through no fault of their own. This is true except that it goes only half way along the road of the fact situation in this case. It goes only to the laid off period and if this were all the further the fact situation progressed I would agree. But the order has gone further and now says that having been recalled pursuant to their rights under the union-company collective bargaining agreement and subsequently discharged as a result of concordance reached at a conference of the claimants’ union representatives and the employer company for illegal acts committed during the laid off period they must now be permitted to receive unemployment compensation benefits. It seems obvious that but for their “misconduct” during “lay off” they would still be employed and this being true their “misconduct” could logically be construed to be “in connection with (their) work” therefore it should necessarily follow that their employment was terminated “through their own fault” and hence they are not the type of persons referred to in the public policy of the Act and should be declared ineligible for benefits.
Therefore it seems that to hold otherwise and affirm the Board’s findings and order is to say in practical effect “you may have your cake and eat it too.” While lamentable as it may be that this philosophy may be *478socially too acceptable in our time it should not, in my opinion, be approved as a matter of law.
I respectfully suggest the Board’s order should be reversed.
. The language in the case and text citations below would indicate that the illegal activities referred to in above dissent amount to misconduct. They are not on point factually in all respects. They do indicate however that misconduct in connection with work should not be too narrowly limited by ‘pigeon holing’ of fact situations because to do so would be to lay down precedents that admit of no flexibility and would tend to preclude informed judgments with varying fact situations. Burns’ Annotated Statutes 1951 Repl. See. 52-1539 1962 Cum. Supp.; Massengale v. Review Board of Indiana Employment Security Division (1950), 120 Ind. App. 604, 608, 94 N. E. 2d 673, 675; Merkle v. Review Board of Indiana Employment Security Division (1950), 120 Ind. App. 608, 90 N. E. 2d 524, 525; Progress Manufacturing Company, Inc. (1961), 195 Pa. Super. 110, 169 A. 2d 567, 569; H. J. Heinz Co. v. Unemployment Compensation Board of Review (1953), 172 Pa. Super. 324, 94 A. 2d 82, 84; Bogue Electric Co. v. Board of Review of the Division of Employment Security of the Dept. of Labor and Industry et al. (1956), 21 N. J. 431, 122 A. 2d 615, 618; Employment Security Board of Maryland v. Lecates (1958), 218 Md. 202, 145 A. 2d 840, 845; Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 296 N. W. 636; 48 Am. Jur., Social Security, Unemployment Insurance, etc., Section #38; 81 C. J. S., Social Security etc., Section # 162; 8 Vanderbilt Law Review (1954-1955), p. 207 and 336, 337; American Bag & Paper Co. v. Unemployment Compensation Board of Review (1957), 184 Pa. Super. 292, 132 A. 2d 765.