Opinion by
Watkins, J.,This is an appeal in an unemployment compensation case by the employer-appellant, General Motors Corporation, Fisher Body Division, from the decision of the Unemployment Compensation Board of Review that awarded benefits to Warren C. Aheimer, one of *225the claimants-intervenors. There are 199 employees involved and the claimant’s appeal will cover all except those who instituted separate appeals.
Local 544 of the United Auto Workers Union instituted a labor dispute at the Pittsburgh plant where the claimant worked and was a member of the union. Work stopped on September 25, 1964. It is clear, as of that time and until October 24, 1964, the claimant was not entitled to benefits under §402(d) of the Unemployment Compensation Law, 43 PS §802(d), in that his unemployment was due to a labor dispute. The labor dispute was finally settled by a new national agreement on November 9, 1964. However, prior to the new national contract, on October 24, 1964, the claimant’s local union and the employer, since all local issues had been settled, except as to checkoff, agreed to open the Pittsburgh plant on the basis of the old contract until the new one was executed. The claimant was recalled to work on October 24, 1964, under a work equalization sheet based on the prior agreement.
The employer had expected to recall all the employees of the Pittsburgh plant but due to matters caused by the strike, was unable to get into full production. The local union, when all employees were not called back complained about the manner of recall and insisted that the employees be recalled by seniority. The employer was not bound by contract to do this but made such an agreement with the union. The claimant was then laid off on October 28, 1964, and another employee called out in his place. The time in dispute is from October 28, 1964 to November 9, 1964.
The issue is a simple one. The employer contends that the claimant’s unemployment was due to the labor dispute; the employee contends that although it is true that his original unemployment was due to a labor dispute, that disqualification ended when he was recalled to work on October 24, 1964 and that his layoff on *226October 28th resulted iu unemployment due to no fault of his own and that the agreement between his employer and his union concerning seniority cannot take away from him the benefits provided by law. Warner Company v. Unemployment Compensation Board of Review (Crianf slice Unemployment Compensation Case), 396 Pa. 545, 153 A. 2d 906 (1959).
The Supreme Court in the Warner case, supra, said at page 551: “This is one reason why the collective bargaining agreement should not control in determining the eligibility of a retired employee for unemployment compensation; rather, the factual matrix at the time of separation should govern.” And further at-page 554: “Where a statute of the Commonwealth expresses a public policy designed to alleviate a condition of possible distress among the public or a segment thereof and explicitly proscribes waiver of the benefits of the act, no private agreement, however valid between the parties, can operate as such a waiver.” The opposite principle that the employer and employee cannot agree that the employee receive benefits when the law precludes such benefits has been stated by this Court. Gagliardi Unemployment Compensation Case, 186 Pa. Superior Ct. 142, 141 A. 2d 410 (1958). See also: Lybarger Unemployment Compensation Case, 418 Pa. 471, 211 A. 2d 463 (1965).
The foundation of the claim in the instant case is that this claimant was recalled to work, so that for him, the labor dispute was ended and he would have continued to be so employed if the employee and employer, as a matter of business and union judgment, by agreement, brought about his unemployment. The agreement is quite binding between the union and the company but cannot operate to deprive the claimant of any rights to which he is entitled under the Unemployment Compensation Law. As the Supreme Court said in the Warner case, supra, at page 551: “Viewed in *227this light, the questions here become simply (1) did Gianfelice cease working voluntarily as a matter of fact, and (2) was Gianfelice available for work thereafter? Since the answers on the record are (1) no, and (2) yes, Gianfelice is entitled to benefits.”
It is true that the employer intended to call back all of the employees at the Pittsburgh plant and that the large number not recalled was because of a lack of cars equipped with racks which was the result of the labor dispute. Those not called back were idle as a result of the strike. This, however, does not apply to those called back, the claimants involved in this appeal. For this reason we agree with the claimants and the board of review that no federal question is involved, i.e., since the labor dispute for these claimants ended with their recall to work, this is not a situation where the board has enforced a law which financially supports employees engaged in a labor dispute.
The many cases cited by the appellant are inapposite or can be easily distinguished on their factual matrices. Did Aheimer cease working voluntarily as a matter of fact? The answer is clearly no. Was Aheimer available for work thereafter? The answer is clearly yes. He is entitled to benefits.
Decision affirmed.