During the spring and early summer of 1945, plaintiffs herein were employed by the defendant Norge Division, Borg-Warner Corporation. Said employer, it is indicated, was operating under contracts with the Federal government in the production of war material. With the termination of hostilities the contracts were cancelled and it became necessary for the employer to make alterations in its plant in order to resume the manufacture of its regular products. Plaintiffs, approximately 566 in number, were laid off at various times during the summer of 1945 because of lack of employment for them while the work of reconversion was in progress.
On the 8th of September, 1945, a strike was called in the employer's plant, apparently by a union which was the sole bargaining agent for the employees, including plaintiffs herein. At that time the employer was not prepared to start its operations and it is conceded that none of the plaintiffs had been recalled to work. The strike, which involved *Page 34 wages and working conditions for all employees, continued until November 12, 1945. The work of reconversion, which was in progress on September 8th, was discontinued apparently because of inability to move necessary material into the plant and because of the refusal of those engaged in the work of reconversion to cross the picket line that was established.
Plaintiffs filed claims for unemployment compensation under the statute,* which claims were allowed by the unemployment compensation commission. The referee sustained the action taken. The appeal board, however, after consideration of the testimony taken before the referee, came to the conclusion that during the period from September 29 to November 12, 1945, plaintiffs' unemployment was due to the labor dispute and that in consequence plaintiffs were not entitled to compensation during said period. Plaintiffs thereupon applied to the circuit court of Muskegon county for a writ of certiorari to review the determination of the appeal board. This action was taken in accordance with section 38 of the unemployment compensation act, above cited (Comp. Laws Supp. 1945, § 8485-78, Stat. Ann. 1947 Cum. Supp. § 17.540), which reads in part as follows:
"The findings of fact made by the appeal board acting within its powers if supported by the great weight of the evidence, shall, in the absence of fraud, be conclusive, but the circuit court of the county, in which the claimant resides or in which the employer's principal place of business in Michigan is located, if no claimant is a party to the case, or the circuit court for the county of Ingham shall have power to *Page 35 review questions of fact and law on the record made before the referee and the appeal board involved in any such final decision, but said court may reverse such decision of said appeal board upon a question of fact only if it finds that said decision of the appeal board is contrary to the great weight of the evidence."
In defining the issues presented, the trial court said:
"The questions involved are as follows: (1) If unemployment is originally caused by lack of work and a labor dispute develops during the continuance of the unavailability of work, is the employee disqualified from receiving unemployment compensation benefits from the date it is established that his unemployment is no longer caused by lack of work but rather is caused by the labor dispute? (2) Were the findings of fact made by the Michigan unemployment compensation appeal board substantiating their answer to question No. 1 above, contrary to the great weight of the evidence presented at the hearing before the referee on appeal from the determination of the Michigan unemployment compensation commission?"
On the first question stated the trial court sustained the conclusion of the appeal board that under section 29(c)(2) of the unemployment compensation act plaintiffs were not entitled to compensation for any period during which unemployment was caused by the strike. As amended by Act No. 246, Pub. Acts 1943, said section, insofar as material here, read as follows:
"An individual shall be disqualified for benefits: * * *
"(c) For any week with respect to which his total or partial unemployment is due to a stoppage of work existing because of a labor dispute in the establishment in which he is or was last employed. Provided, *Page 36 however, That no individual shall be disqualified under this section if he shall establish that he is not directly involved in such dispute. For the purpose of this section, no individuals shall be deemed to be directly involved in a labor dispute unless it is established: * * *
"(2) That he is participating in or financing or directly interested in the labor dispute which caused the stoppage of work: Provided, however, That the payment of regular union dues shall not be construed as financing a labor dispute within the meaning of this subsection."
However, after reviewing the evidence in the case, the trial judge found that the determination of the appeal board that plaintiffs' unemployment during the period from September 29 to November 12, 1945, was due to the labor dispute was contrary to the great weight of the evidence. He accordingly entered judgment reversing the order of the appeal board and granting compensation in accordance with the findings and conclusions of the unemployment compensation commission and the referee. Defendant employer has appealed, contending that the court erred in setting aside the order of the appeal board.
In support of its claim that the unemployment for which plaintiffs seek compensation was during the period in question due to the strike, the employer produced as a witness before the referee its plant manager. He testified in substance that when the strike was called on September 8, 1945, the reconversion work at the plant was progressing and that the employer intended to manufacture electric refrigerators, washing-machine units, and oil heaters. He stated also that at the time there were some 830 employees in the plant. Apparently some of these employees were engaged in reconversion work, certain parts of which were being performed by skilled *Page 37 workmen not employees of the Norge Division, Borg-Warner Corporation. As a result of the strike, further continuance of the work of reconversion was prevented because of the impossibility of bringing necessary labor and material into the plant. The witness did not state specific facts as to the character or details of the work necessary for the reconversion or as to the material that was available for use in the work of reconversion and for the carrying on of the manufacturing operations that were contemplated. In answer to questions as to the period of time within which plaintiffs would have been called back to work had the strike not occurred, the witness at first answered:
"I think that would come under the hearing of expert testimony. As a person who is very familiar with the subject, I could probably give a very close surmise, but I certainly have no crystal ball."
In reply to the question as restated by counsel, the witness answered as follows:
"Based upon the amount of material that we had available, and the point at which our reconversion work was on September 8th, I would say that we would have had all of these people back in the plant within a period not exceeding three weeks from that date."
On the basis of the testimony of appellant's plant manager the appeal board found as a fact that if the strike had not occurred plaintiffs would have been recalled on or before September 29, 1945, and, hence, that during the balance of the period of the strike their unemployment was due to the labor dispute. Appellees insist that the testimony of this witness, read in its entirety, clearly indicates that it was based on conjecture, speculation and surmise. The trial judge found with this contention. A careful examination of the record convinces us that he came *Page 38 to the correct conclusion. It is significant that the witness did not state the facts on which his opinion was based. Other than said opinion itself, there is nothing in the record to support the finding of the appeal board.
Obviously there were many elements that entered into the completion of the work of reconversion of the plant and the preparation for manufacturing operations in accordance with the employer's plans. In expressing his opinion, however, it will be noted that the witness referred merely to the material on hand and the progress of the work of reconversion up to that time. On the basis of his statement it is indicated that he did not give consideration to the obtaining of further necessary material or to the means available for completing the necessary changes in the plant. Quite possibly he assumed that such material would be forthcoming and that the work would have progressed after September 8th in like manner as prior to that date. Whether he had the right to indulge in such assumption, this record does not show. That further material was required to enable the employer to carry on its operations clearly appears. After the strike was ended, it is in evidence that operations were hampered because of inability to obtain deliveries of necessary materials. It further appears that the completion of the work of reconversion was also delayed, following the termination of the strike, because of difficulty in obtaining the necessary labor. As a result, the number of plaintiffs in this case is materially in excess of the difference between appellant's employees on its factory payroll on September 8, 1945, and the number so employed on February 26, 1946. Whether such difficulties, or others of like character, might have been encountered if the strike had not occurred is uncertain. The conclusion cannot be avoided that the opinion of the witness, quite *Page 39 possibly based in part on a knowledge of facts not appearing in this record, necessarily rested, also, on assumptions that involved conjecture and speculation. Such an opinion may not properly be made the basis of a specific finding of facts.
Appellant emphasizes the claim that the witness in question was an expert. Doubtless as the manager of the plant he was familiar with the conduct of its ordinary business. It does not appear, however, that he had had experience in the reconversion of manufacturing establishments engaged in the production of munitions of war in such manner as to render them suitable for the manufacture of refrigerators, washing machines and oil burners. He had been employed by appellant as its plant manager since October, 1943. However, whether testifying as an expert, as a skilled observer, or as an ordinary witness, his opinion, in order to be given probative force, must have rested on a factual basis. Unless such was the case, his estimate or conclusion may not properly be regarded as establishing a material fact in controversy in the case. The conclusion itself may not be invoked to supply substantial facts necessary to support it. We may not assume on this record that the witness had knowledge sufficiently comprehensive to support his opinion and that he took into consideration all facts necessary for a proper conclusion.Dreher v. Order of United Commercial Travelers of America,173 Wis. 173 (180 N.W. 815); Hornby v. State Life Ins. Co.,106 Neb. 575 (184 N.W. 84, 18 A.L.R. 106). See, also, 11 R.C.L. p. 577; 32 C.J.S. pp. 164, 216, 219; Dowagiac Manufacturing Co. v. Corbit, 127 Mich. 473; Callender v. Myers Regulator Co.,250 Mich. 298; Zuidema v. Bekkering, 256 Mich. 327; Holmes v. J.W. Wells Lumber Co., 274 Mich. 166; McDuffie v. Root,300 Mich. 286. *Page 40
When plaintiffs were laid off in the summer of 1945 such action, it is conceded, was due to lack of work. On the hearing before the referee appellant undertook to establish by proof that the condition existing at the outset was changed and that from and after September 29th and for the duration of the strike, plaintiffs' unemployment was due to the labor dispute. Appellant failed to introduce competent evidence of sufficient weight to support a determination of the issue in its favor. It must be said that the finding of the appeal board was against the great weight of the evidence and that in consequence the trial court acted properly in setting it aside.
The conclusion indicated as to the principal question in the case renders it unnecessary to consider other matters discussed by counsel in their briefs. The judgment of the circuit court should be affirmed, with costs to appellees.
BUSHNELL, C.J., concurred with CARR, J.
* Act No. 1, Pub. Acts 1936 (Ex. Sess.), as amended by Act No. 347, Pub. Acts 1937; Act No. 324, Pub. Acts 1939; Act No. 364, Pub. Acts 1941; Act No. 18, Pub. Acts 1942 (2d Ex. Sess.); Act No. 246, Pub. Acts 1943; Act No. 9, Pub. Acts 1944 (1st Ex Sess.), and Act No. 335, Pub. Acts 1945 (Comp. Laws Supp. 1940, 1945, § 8485-41 et seq., Stat. Ann 1945 Cum. Supp. § 17.501 etseq.).