I disagree with the majority that the statute permits an interpretation that under the circumstances herein there can be two separate industries — the shipbuilding industry and the building and construction industry — for the purpose of determining a prevailing wage. In my opinion, the employment record of the claimant as a “ pipe coverer ” demonstrates to the contrary as he had worked in each industry.
Originally, the issue tried before the Referee concerned the refusal by the claimant to accept an offer of $2.64 an hour instead of his demand of $2.75.
The Appeal Board, while deciding that the claimant was not entitled to unemployment insurance benefits, nevertheless, felt constrained to develop a theory, not contained in the statute, of two separate industries regardless of the fact that in both the claimant performed the same type of services.
The “ two separate industries ” theory will create havoc with the law.
In Matter of Shotkin (Catherwood) (10 A D 2d 738) the board said that there were two separate industries for the purpose of determining the prevailing wage, (1) employment by a clerk in a hospital at one rate; (2) employment by a clerk in a public utility at a different rate. This court stated that such was not the test but rather the wages available for the job offered.
In my opinion, the statute makes no such distinction between industries when there is no difference between the skills required of the employee. The statute requires similar work in the same locality and the facts herein need not be interpreted to violate paragraph [d] of subdivision 2 of section 593 of the Labor Law as to prevailing wages or such as tend to depress wages or working conditions. The mere fact that one type of employer pays a higher wage than another to an employee who is fitted and trained by experience to perform the same work for either employer is not the sole test in determining the rights to benefits.
This case should be decided solely on the second ground advocated by the majority which I understand to be that claimant’s contention that he is entitled to benefits is abhorrent to the intent and purpose of the law. A claimant who has the oppor*390tunity to earn in his type of employment in excess of $100 per week—the fact in this case-—was never intended to be the recipient of unemployment insurance.
To otherwise hold would be contrary to the public policy of this State (see Labor Law, § 501) and would require legislative consideration.
Bergan, P. J., Reynolds and Taylor, JJ., concur with Coon, J.; Herlihy, J., concurs in the result in an opinion.
Decision of the Unemployment Insurance Appeal Board affirmed, without costs.