The opinion
Gatjlkiií, J. A. 1).
(concurring). The majority says “the choice is between giving claimants unemployment benefits even though a part of their unemployment for the benefit week is due to a labor dispute, or denying them any benefits for such week even though part of their unemployment is due to a lack of work.”
It appears to me that a third construction is possible. That is that, if the employee would have earned more than “his weekly benefit rate” if he had worked on those days of the week during which there was “a stoppage * * * because of a labor dispute,” he is not entitled to benefits. On the other hand if, even had he worked, he would not have earned that much, he is entitled to benefits, in spite of the fact that part of his week’s unemployment was due to such a stoppage.
N. J. S. A. 43:21-19 (m) provides that “an individual shall be deemed unemployed for any week during which” two things co-exist: “he is not engaged in full time work,” and “his remuneration is less than his weekly benefit rate.” N. J. S. A. 43:21-5(d) provides that he shall be disqualified if “it is found that his unemployment is due io a stoppage of work which exists because of a labor dispute * * (Emphasis ours) That would appear to mean that the employee is ineligible when, but only when, both of the two necessary elements of unemployment are caused by a labor dispute—his failure to work a full time week and his failure to earn his weekly benefit rate. If he would not have earned his weekly benefit rate even if there had been no labor dispute stoppage, his unemployment is not “due to” a labor dispute and he is eligible for benefits in spite of such stoppage. An example of such a week would be one in which a man, whose benefit rate is $35, normally earning $16 per day and working a five-day week, has two strike days and three lay-off days. *68 On. the other hand if, had there been no labor dispute, he would have earned his benefit rate, his failure to earn it would be due to a labor dispute, and he would be ineligible.
However, this suggested construction was rejected by counsel, and found no favor with my respected brethren. Such unanimity convinces me that this construction is, if not completely erroneous, at least so doubtful that I should concur in the opinion of the majority, in obedience to the mandate of the statute to adopt the construction most favorable to the employee. I am especially moved to this conclusion by the broad meaning given to “labor dispute” by the cases.
Eor the foregoing reasons, I concur with the result reached by the majority.