Because I was in Chicago serving as arbitrator for the Government in the Toledo, Peoria and Western Railroad controversy when these cases were orally argued, I had thought I would not. participate in the decision. The points are so important, however, that I was moved to examine the records and briefs. As the result of that study I am in disagreement with the opinion of the court. I am not a little persuaded to that view by the dissenting opinion prepared by the late Justice Otto Bock. That the convictions of our late distinguished brother on the questions involved may not be lost to the learning on the subject, and which I am honored to adopt as my own, I quote his opinion, as follows:
“I regret my inability to concur. I believe that our approach to a determination of the issues involved in these cases should be the same as that adopted when we are called upon to construe or consider any other statutory provisions relating to compensation benefits. The legislative intent is to provide a measure of economic security for one while he is out of employment. The objective of the coal operators is to limit the purpose of this beneficial relief. In a determination of this issue we should give such a beneficial statute a liberal construction. Such has consistently been our attitude in construing the Workmen’s Compensation Act, which, like the Colorado Employment Security Act, is grounded in *124the industrial development of the state. It is unnecessary, in view of our numerous decisions laying down this rule of construction, to make reference to specific cases. The social implications of the act are of no concern to us.
“In its finding and decision the commission states: ‘Clearly, the question before this Commission is solely one of determining whether a strike did exist on April 2, 1941, in the bituminous coal industry in the State of Colorado.’ Whether, under the facts in this case, there was a strike within the meaning of section 5(3) (d), chapter 167A, 1941 Supp., ’35 C.S.A., is, in the final analysis, a judicial question. Relative to those facts, the commission, in its findings, makes the following statement: ‘It is recognized that the continuation of operations in the bituminous coal industry is governed by contract between the operators and workers. Upon the expiration of one contract, it is mutually understood that any further work will proceed or cease, according to a contract. Therefore, when the old contract expired on March 31, 1941, it was understood that operations between employer and worker alike should be suspended pending a new agreement.’ This statement is predicated upon the evidence of the coal operators, representatives of which also testified that the Appalachian group fixes the basic wage of all other groups, and until that agreement is consummated, the coal operators and miners in Colorado could not conclude their agreement. This has been the practice for a number of years. The differentials in wages between the several groups affect the various trade areas which the parties seek to preserve in order not to distort existing competitive fields. A joint conference of all parties, as provided by section 26 of the agreement, was held March 23, 1941, with the result above indicated, viz., that no agreement could be consummated until the Appalachian wage scale was determined. As soon as this was determined the parties hereto consummated another agreement.
*125“The decision of the commission was, ‘That the cessation of work in the bituminous coal industry in the State of Colorado existing on April 2, 1941, constitutes a bona fide labor dispute, and all claimants whose total or partial unemployment is due to this strike are ineligible for benefits under Section 5 (d) of the Colorado Employment Security Act.’.
“In Restatement of the Law — Torts, page 140, section 797, a strike is defined as follows: ‘A strike is a concerted refusal by employees to do any work for their employer, or to work at their customary rate of speed, until the object, of the strike is attained, that is, until the employer grants the concession demanded.’ This definition excludes the suspension of work by reason of a mutual understanding, as indicated by the statement of the commission quoted above. Since 1933, by common agreement, no contract would be negotiated until the Appalachian wage scale became fixed. The whole arrangement between the parties was contractual, including the obligation of the miners to supply men to take care of maintenance and repair of the mines during the cessation of general work and during negotiations of the new contract.
“The case of United States Coal Co. v. Unemployment Compensation Board of Review, 66 O. App. 329, 32 N.E. (2d) 763, involved a situation similar to the one here under consideration. There, in upholding the contention of the miners, the court said: ‘In the absence of any contractual obligation, and in the absence of any duty on either side, and with knowledge on the part of both the operators and the miners, that their relationship would be decided by the results of this Appalachian Joint Conference, it seems to us to follow that there was no strike during that period of time on the part of these miners.’
“It is true that the coal operators offered to continue operations upon the same terms as those contained in the 1939 agreement, either for a period of two years or *126until a satisfactory agreement could be reached in the Appalachian district. This, however, was simply in the course of a mere conversation and was on a par with the offer of the miners to continue operations, with the understanding that upon the fixing of the Appalachian basis the new contract would operate retroactively, beginning April 1, 1941. All parties knew from past experience that if the contractual basis between them was to continue, the Appalachian controversy must first be settled. Under these circumstances, the facts did not warrant the commission’s determination that, owing to a strike, the claimants were disqualified from receiving insurance benefits under the Colorado Employment Security Act.
“It will be noted that the commission, in its decision above quoted, used the term labor dispute.’ This designation is considerably more comprehensive than the term ‘strike.’ In all the cases, except one, cited in support of the'contention of the operators, the disqualifying statutory provision relates to labor disputes.’ If our statute were similar, it would not be difficult to sustain the operators’ position. Under the facts and circumstances before us, there was, in my opinion, no strike within the meaning of section 5(3) (d), supra, which would disqualify claimants from collecting benefits under the act; consequently, I believe the judgment should be reversed.”