
    In the Matter of the Claim of Elizabeth La Mountain et al., Appellants. Westport Central School District, Respondent. Philip Ross, as Industrial Commissioner, Respondent. In the Matter of the Claim of Tina Williams, Appellant. Ithaca City School District, Respondent. Philip Ross, as Industrial Commissioner, Respondent. In the Matter of the Claim of Claire W. Hess, Appellant. Baldwinsville Central School District, Respondent. Philip Ross, as Industrial Commissioner, Respondent.
    Argued October 8, 1980;
    decided November 20, 1980
    
      POINTS OF COUNSEL
    
      J. Michael Eadry and Bernard F. Ashe for Elizabeth La Mountain and others, appellants.
    I. Individual contracts are not applicable to members of a collective bargaining unit. II. The unilateral notices do not constitute enforceable contracts. (Rubin v Dairymen’s League Co-op. Assn., 284 NY 32, 816; Baum v Beacon Feeds, Beacon Div. of Textron, 31 AD2d 734; Petterson v Pattberg, 248 NY 86; Kovacs v Countess Mara, 275 App Div 970, 301 NY 805; Cowan v De Witt, 205 Misc 130, 284 App Div 998; Ivor B. Clark, Inc. v Boston Rd. Shopping Center, 24 Misc 2d 84; Valentino v State of New York, 48 AD2d 15.) III. The "Triborough Doctrine” has been misapplied. (Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753; Matter of Board of Educ. [Malone Cent. Teachers Assn.], 53 AD2d 417; Matter of Board of Educ. [Poughkeepsie Public School Teachers Assn.], 75 Misc 2d 931, 44 AD2d 598; Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614.) IV. The court below improperly engaged in judicial legislation. (Board of Educ. v Licata, 42 NY2d 815; Matter of Jerry v Board of Educ., 35 NY2d 534; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Matter of Ocean Hill-Brownsville Governing Bd. v Board of Educ., 30 AD2d 447, 23 NY2d 483; Perkins v Merchants Mut. Ins. Co., 82 Misc 2d 157, 50 AD2d 1070, 41 NY2d 394.)
    
      Janet Axelrod and Paul E. Klein for Tina Williams, appellant.
    I. Unionized noninstructional school district employees may be denied unemployment benefits at the close of the school year under subdivision 11 of section 590 of the Labor Law only if a collective bargaining agreement exists, guaranteeing continued employment for the following school year. 
      (Matter of Theurer [Trustees of Columbia Univ. in City of N. Y.—Ross], 59 AD2d 196; Davis v State of New York, 54 AD2d 126; People v Mobil Oil Corp., 48 NY2d 192; Matter of Albano v Kirby, 36 NY2d 526.) II. An expired collective bargaining agreement cannot satisfy the requirement of subdivision 11 of section 590 of the Labor Law for a "written contract” guaranteeing employment. (Board of Educ. [Yonkers Federation of Teachers], 40 NY2d 268; Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753; Matter of Board of Educ. [Poughkeepsie Public School Teachers Assn.], 44 AD2d 598; Matter of Corbin v County of Suffolk, 54 AD2d 698; Matter of Board of Educ. [Malone Cent. Teachers Assn.], 53 AD2d 417.) III. The notice of continuing employment sent to claimant by the employer is not an enforceable "written contract” under subdivision 11 of section 590 of the Labor Law. (Rubin v Dairymen’s League Co-op. Assn., 284 NY 32; Valentino v State of New York, 48 AD2d 15; Baum v Beacon Feeds, Beacon Div. of Textron, 31 AD2d 734; Austin Instrument v Loral Corp., 29 NY2d 124.)
    
      James Featherstonhaugh and Williams F. Reynolds for Claire W. Hess, appellant.
    I. Appellant, being a member of a collective bargaining unit, does not have a written contract which continues her services. (Local 456 Int. Brotherhood of Teamsters v Town of Cortlandt, 68 Misc 2d 645; People v Women’s Christian Assn. of Jamestown, 56 AD2d 101; Matter of Schrider v National Distillers & Chem. Corp., 51 AD2d 1068; People v Meikrantz, 77 Misc 2d 892; Gaden v Gaden, 29 NY2d 80.) II. The court below misconstrued the subject statute, and, in so doing, rewrote the language of the same. (Matter of Howard v Wyman, 28 NY2d 434; Matter of Klein [Levine], 42 AD2d 640; People v Shafer, 30 AD2d 213; Perkins v Merchants Mut. Ins. Co., 82 Misc 2d 157, 50 AD2d 1070, 41 NY2d 394; People v Women’s Christian Assn. of Jamestown, 56 AD2d 101; Matter of Schrider v National Distillers & Chem. Corp., 51 AD2d 1068; Matter of Theurer [Trustees of Columbia Univ. in City of N. Y.—Ross], 59 AD2d 196; Matter of Malpica-Orsini, 36 NY2d 568; Davis v State of New York, 54 AD2d 126; Board of Educ. v Licata, 42 NY2d 815.) III. The legislative history of the statute shows that a collective bargaining agreement guarantee of continued employment is necessary to deny benefits. (Matter of Theurer [Trustees of Columbia Univ. in City of N. Y.—Ross], 59 AD2d 196.) IV. The notice sent to claimant does not constitute an enforceable "individual contract”. (Valentino v State of New York, 48 AD2d 15; Baum v Beacon Feeds, Beacon Div. of Textron, 31 AD2d 734; Scott v Motor Lodge Props., 35 Misc 2d 869.)
    
      Robert Abrams, Attorney-General (Frederick M. Paola, Shirley Adelson Siegel and Paul S. Shemin of counsel), for Philip Ross, respondent in each of the proceedings.
    Appellants’ weeks of employment and remuneration as nonprofessional employees of an educational institution were properly excluded pursuant to subdivision 11 of section 590 inasmuch as appellants, as members of a collective bargaining unit, had written enforceable contracts continuing their services for both of two successive academic years. (Matter of Malpica-Orsini, 36 NY2d 568; Matter of Klipp v New York State Civ. Serv. Comm., 42 Misc 2d 35, 22 AD2d 854, 15 NY2d 880; Travelers Ins. Co. v Padula Co., 224 NY 397; Johanns v Ficke, 224 NY 513; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Industrial Comr. of State of N. Y. v Five Corners Tavern, 47 NY2d 639; Matter of Fisher [Levine], 36 NY2d 146.)
    
      Harry T. Shaw for Westport Central School District, respondent.
    I. The appeal board properly construed the Triborough Doctrine requirement that the status quo of a bargaining agreement be preserved during negotiations for continuance of the agreement, as being the equal of a written contract which continues the services of appellants during the time in issue. (Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY 2d 753; Matter of Board of Educ. [Connetquot Teachers Assn.], 74 Misc 2d 336; Professional Staff Congress/Cuny v Board of Higher Educ., 83 Misc 2d 900; Matter of Betts [Hoosic Val. Teachers’ Assn.], 86 Misc 2d 964.) II. The letters exchanged by the Westport Central School District and each of appellants, concerning continuation of employment for the following school term, constituted bilateral contracts between the parties. (Valashinas v Koniuto, 283 App Div 13; Matter of Lord, 175 Misc 921; Antonucci v Stevens Dodge, 73 Misc 2d 173.) III. According to the most reasonable construction of subdivision 11 of section 590, any claimant is ineligible for benefits if he has a written contract which continues his services for the succeeding academic year. (Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Williams v Williams, 23 NY2d 592; Matter of Fenton v Randolph, 92 Misc 2d 514; Matter of Aquilina v New York Tel. Co., 62 AD2d 1096; Matter of Sellers [J. W. Mays, Inc.—Catherwood], 13 AD2d 204; Deverho Constr. Co. v State of New York, 94 Misc 2d 1053; Matter of Sabot v Lavine, 42 NY2d 1068; Town of Cairo v Cairo Fair Grounds, 46 AD2d 566.) IV. The reasonable expectation of employment for the succeeding term, which appellants had by the virtue of the letters from the district and the Triborough Doctrine, should be deemed to satisfy the requirements of a "contract” under subdivision 11 of section 590. (Chicago Teachers Union, Local No. 1 AFT/AFL/CIO v Johnson, 421 F Supp 1261.)
    
      Thomas J. Grooms and Joseph R. Cook for Ithaca City School District, respondent.
    I. The decision of the Unemployment Insurance Appeal Board may be sustained, as a rational interpretation of the statute, on a number of different grounds. II. The legislative histories and judicial precedent from multiple jurisdictions confirm that, for unemployment insurance purposes, "contract” is to be equated with "reasonable assurance”. (Matter of Klein [Levine], 42 AD2d 640; Matter of Sherwin [Levine], 48 AD2d 733; Matter of Nierenberg [Levine], 48 AD2d 729; Matter of Di Cerbo [Levine], 45 AD2d 933; Matter of McCarroll [Ross], 64 AD2d 992; Chicago Teachers Union, Local No. 1 AFT/AFL/CIO v Johnson, 421 F Supp 1261.) III. The public policy behind the statute and the interpretation of the agency responsible for administering the statute support the decision below. IV. The decision of the Unemployment Insurance Appeal Board is based on a rational interpretation of the statute and must therefore be affirmed by a reviewing court. (Matter of Fisher [Levine], 36 NY2d 146; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Howard v Wyman, 28 NY2d 434; Matter of Marsh [Catherwood7, 13 NY2d 235; Matter of Incorporated Vil. of Lynbrook v New York State Public Employment Relations Bd., 48 NY2d 398.) V. Alternatively, there existed a written bilateral contract between the district and appellant continuing her services as a school bus driver for the 1978-1979 academic year. VI. Appellant’s argument that a written collectively bargained agreement between the union and the employer guaranteeing employment is necessary to satisfy subdivision 11 of section 590 of the Labor Law is totally without merit. (Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753; Matter of Burke v Bowen, 40 NY2d 264.)
    
      
      Edward J. Moses for Baldwinsville Central School District, respondent.
    I. In enacting subdivision 11 of section 590, the Legislature intended the uniform and nondiscriminatory treatment of nonprofessional educational employees. (Davis v Supreme Lodge, Knights of Honor, 165 NY 159; American Airlines v State Comm. for Human Rights, 29 AD2d 178; People v McNair, 78 Misc 2d 341; People v Dethloff, 283 NY 309; Matter of Burke v Bowen, 40 NY2d 264; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; People v Ryan, 274 NY 149.) II. The requirement of a "contract” continuing services is satisfied by the written notice served upon claimant herein. (Matter of McCarroll [Ross], 64 AD2d 992; Matter of Klein [Levine], 42 AD2d 640; Matter of Di Cerbo [Levine], 45 AD2d 933; Feder v Caliguira, 8 NY2d 400; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Howard v Wyman, 28 NY2d 434.) III. The Hess notice estopped the district from terminating appellants employment or abolishing her position in the fall. (City of New York v State of New York, 40 NY2d 659; Werking v Amity Estates, 2 NY2d 43; Horne v Radiological Health Servs., 83 Misc 2d 446; Gratton v Dido Realty Co., 89 Misc 2d 401.) IV. Even assuming, arguendo, that this court holds the "individual contract” provision in subdivision 11 of section 590 inapplicable to appellant, the district’s notice satisfied the "written contract” provision thereof. (J. I. Case Co. v Labor Bd., 321 US 332.)
    
      Beverly Gross and Carlin Meyer for District Council 37, AFSCME, amicus curiae in the first above-entitled proceeding.
    The decision of the court below is incorrect and should be reversed.
    
      Harvey Mandelkern for New York State School Board Association, Inc., amicus curiae in the first above-entitled proceeding.
    I. The court below, having correctly limited its scope of review of the Unemployment Insurance Appeal Board’s construction of the statute to irrationality or unreasonableness, correctly affirmed the appeal board. (Matter of Howard v Wyman, 28 NY2d 434; Matter of Marsh [Catherwood], 13 NY2d 235; Matter of Deitchman [Catherwood], 34 AD2d 718; Matter of Peak [North Colonie Cent. School Dist.—Ross], 72 AD2d 854; Matter of Incorporated Vil. of Lynbrook v New York State Public Employment Relations Bd., 48 NY2d 398; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.) II. The New York State law must be read in pari materia with the Federal law, since the purpose of the New York law is to conform to the Federal statute. (Matter of Theurer [Trustees of Columbia Univ. in City of N. Y.—Ross], 59 AD2d 196; County of Los Angeles, Cal. v Marshall, 442 F Supp 1186.) III. Where a word (in this case "contract”) has received a judicial construction, it will almost invariably be given the same meaning where it is again used by the Legislature in connection with the same subject. (Matter of Klein [Levine], 42 AD2d 640; Matter of Sherwin [Levine], 48 AD2d 733; Matter of Nierenberg [Levine], 48 AD2d 729; ABKCO Inds. v Apple Films, 39 NY2d 670; Matter of McCarroll [Ross], 64 AD2d 992; Matter of Di Cerbo [Levine], 45 AD2d 933.) IV. Subdivision 11 of section 590 of the Labor Law does not mandate that the written contract (which is required for members of collective bargaining units) be a job security clause solely with the collective bargaining unit to the exclusion of individual contracts with members of such unit. (Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Yonkers Federation of Teachers v Board of Educ., 44 NY2d 752; Retail Clerks v Lion Dry Goods, 369 US 17; Santos v District Council of N. Y. City & Vicinity of United Brotherhood of Carpenters & Joiners of Amer., AFL-CIO, 547 F2d 197; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Engle v Talarico, 33 NY2d 237.)
   OPINION OF THE COURT

Jones, J.

A determination by the Unemployment Insurance Appeal Board that a nonprofessional employee of a school district is ineligible for unemployment benefits in weeks between academic years will not be disturbed when the employee, who is a member of a collective bargaining unit, has received a written notice that his or her employment will be continued during the following year, although no provision assuring such employment following the summer recess is included in the collective bargaining agreement previously entered into by the school district.

Each of the claimants in these three cases was employed in a nonprofessional capacity by a public school district during the 1977-1978 academic year — La Mountain, White and Brant as cafeteria workers and Bunning as a nurse by the Westport Central School District, Williams as a bus driver by the Ithaca City School District, and Hess as a cafeteria worker by the Baldwinsville Central School District. Collective bargaining agreements that had been in effect with respect to the West-port and Ithaca school districts expired on June 30, 1978 and, although contract negotiations were then under way, no successor agreements had been signed when the named employees of those districts sought unemployment benefits. A collective bargaining agreement to which the Baldwinsville district was a party covered the period from July 1, 1977 through June 30, 1979, but neither that agreement nor the expired agreements with the other two districts contained any provision assuring claimants that they would be employed for the school year commencing in September, 1978. However, on June 20, 1978 or June 23, 1978 each claimant was sent a letter or notice by her school district informing her that she would be continued in her position during the school year or term that would begin the following September and requesting that she indicate her intention to resume her duties by signing and returning a copy of the letter or notice from the school district. Each of the claimants, with the exception of Hess, communicated her written acceptance of the continuation.

Shortly after the 1977-1978 school year had ended, and after the above notices had been received, each of the several employees filed a claim for unemployment benefits for the summer recess period between the 1977-1978 and the 1978-1979 school years; the claims were rejected and benefits denied by respondent appeal board however, on the ground that each claimant came within the proviso clause of subdivision 11 of section 590 of the Labor Law. That subdivision, in pertinent part, provides: "Benefits based on non-professional employment with certain educational institutions. If a claimant was employed in other than an instructional, research or principal administrative capacity by an educational institution which is not an institution of higher education, the following shall apply to any week commencing during the period between two successive academic years or terms provided the claimant as a member of a collective bargaining unit has a written contract which continues his services in such capacity for any such institution or institutions for both of such academic years or terms or an individual contract to perform services for such period if he is not a member of a bargaining unit” (emphasis added).

With respect to the claims filed by employees of the West-port and Ithaca school districts, the appeal board found that the collective bargaining agreements with those districts which expired on June 30, 1978 (the provisions of which it considered as continuing in effect during negotiation of successor agreements), taken with the notices of employment for the school year or term beginning in September, 1978 distributed to the claimants in June, 1978, constituted written contracts within subdivision 11 of section 590 of the Labor Law. With respect to claimant Hess of the Baldwinsville school district, the board found that she was covered by the collective bargaining agreement between the district and the union representing its employees effective from July 1, 1977 through June 30, 1979 and had been notified that her services were to be continued for the school year 1978-1979, so that she was similarly rendered ineligible for benefits by the statute.

The Appellate Division, at which the appeals in these cases were argued together, affirmed the decisions by the Unemployment Insurance Appeal Board, concluding that claimants were ineligible for benefits for the period between the 1977-1978 and 1978-1979 school years by reason of subdivision 11 of section 590 of the Labor Law. We reach the same result but for a reason different from that of the court below.

With respect to ineligibility of nonprofessional employees of educational institutions for benefits under the Unemployment Insurance Law (Labor Law, art 18) during periods between successive academic years or terms of their employer institutions, the Appellate Division distinguished (correctly in our view) two groups of employees — those who are members of a collective bargaining unit and those who are not. A member of a collective bargaining unit is ineligible for benefits if he or she has a written contract which "continues his services * * * for both of such academic years or terms”. An employee who is not a member of a bargaining unit is ineligible if he or she has "an individual contract to perform services for such period”. The court below concluded that, because either no collective bargaining agreement assuring employment of the claimants during the school year beginning in September, 1978 was in effect or because (in the case of claimant Hess) the agreement which was in effect failed to assure Hess’ employment during that school year, claimants did not fall within the first group excluded from benefits by subdivision 11 of section 590, and that ineligibility, if it existed, must be based on the existence of "personal contracts” of employment —the critical factor in the case of employees who were not members of a bargaining unit. (The court took this position notwithstanding that it was satisfied that claimants had not ceased to be members of a bargaining unit on the expiration of the collective bargaining agreements of their units.) It then found that the notices of employment for the 1978-1979 year or term sent to each of the claimants constituted such "personal contracts”, and the determination of ineligibility followed.

We agree that claimants are not entitled to unemployment benefits for the 1978 school summer recess period but predicate this conclusion on the appeal board’s finding that claimants had written contracts within the meaning of subdivision 11 of section 590, which were sufficient to disqualify them, as members of a bargaining unit, from benefits between the school years in question. At the core of the controversy between the parties is the question whether, to disqualify a claimant who is a member of a collective bargaining unit, his or her written contract for continued employment must be contained and expressed in an applicable collective bargaining agreement. Claimants strenuously urge that the statute requires such incorporation and that no written contract outside a collective bargaining agreement will suffice; the Industrial Commissioner does not read the statute to lay down any such exclusive mandate. If that issue be resolved in favor of the commissioner and it is determined that a written contract outside the collective bargaining agreement may satisfy the statute, there remains the subsidiary question whether these claimants are disqualified in consequence of any such written contracts.

The contention that the written contract with the individual employee must be embodied in a collective bargaining agreement overlooks the fact that nowhere in subdivision 11 of section 590 is there any reference to a collective bargaining agreement; what the statute requires for ineligibility in the case of a member of a collective bargaining unit is a "written contract” and, in the case of a nonmember, an "individual contract”. The objective of the statute is apparent on its face —to render ineligible for school summer recess unemployment benefits nonprofessional school employees of one year who have been assured that their employment will continue when the next academic year resumes in the fall. In the case of an-employee who is a member of a collective bargaining unit the necessary evidence of the required assurance is a "written contract” — something on which the individual employee can rely. Nothing in the language of the statute or in the circumstances existing at the time of its enactment suggests the restriction for which claimants argue — namely, that the employee is to be deprived of benefits only if the written assurance of continuing employment is incorporated in a collective bargaining agreement. Indeed, quite the contrary may be concluded from counsel’s concession on oral argument that it was not the prevailing practice of educational institutions in labor relations at the time subdivision 11 of section 590 was adopted to include individual contracts of hire in collective bargaining agreements. As the Supreme Court of the United States has observed: "Collective bargaining between employer and the representatives of a unit, usually a union, results in an accord as to terms which will govern hiring and work and pay in that unit. The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone.” (J. I. Case Co. v Labor Bd., 321 US 332, 334-335.) That being so, to regard the statute as applicable only to those instances in which the hiring contracts of the employees were included in a collective bargaining agreement would serve in practical consequence to emasculate the legislation and to ascribe to the Legislature an intent to adopt an ineffectual statute.

Claimants place unwarranted emphasis in their argument on the inclusion of the phrase "as a member of a collective bargaining unit” in subdivision 11 when they assert that the only way in which a claimant as a member of a collective bargaining unit may have a written contract which continues his services is that the contract continuing his services be included in a collective bargaining agreement. The phrase serves only to define the group to which the requirement of a written contract applies; it contrasts with the description of an employee falling within the second group (viz., an employee who "is not a member of a bargaining unit”), nothing more.

The question that remains in determining whether claimants, as members of a bargaining unit, were ineligible for benefits is whether the appeal board’s finding that they had written contracts continuing their services for the school year or term commencing in September, 1978 was irrational or unreasonable. If it was neither, it must be upheld (Matter of Howard v Wyman, 28 NY2d 434, 438), for the question, involving policy considerations relating to the intended scope of the statute, "is one to the determination of which the Appeal Board may bring to bear its own special competence in carrying out the supervisory authority conferred on it by the Legislature” (Matter of Fisher [Levine], 36 NY2d 146, 150).

We find no irrationality or unreasonableness in the board’s conclusion, which was based — as well it might be — on two items. First, there were the June, 1978 notices that their employments would be continued when school resumed, containing definite dates of the terms of employment, which were sent to claimants and, but for claimant Hess who will be mentioned subsequently, by them agreed to in a writing returned to the employer. Coupled with these notices, which extended individual employment offers to the recipients, was the fact of the continuation, under what has become known as the Triborough Doctrine (see Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753), of the terms and conditions of employment incorporated in the collective bargaining agreements that had expired on June 30, 1978. In light of those two factors assuring claimants of an opportunity of employment in the coming fall and defining the terms of the employment, it was not irrational for the appeal board to conclude that claimants had written contracts disqualifying them from summer recess unemployment benefits under the provision of subdivision 11 of section 590 of the Labor Law. Relevant again is language from J. I. Case Co. v Labor Bd. (321 US 332, 334, supra): "Contract in labor law is a term the implications of which must be determined from the connection in which it appears.” That precept finds application in the determination by the appeal board and makes inapplicable the multitude of cases from the body of general contract law, giving a restricted meaning to the term, cited by claimants.

Subdivision 11 of section 590 was enacted by chapter 675 of the Laws of 1977, the purpose of which chapter was to conform the unemployment insurance provisions of our State’s Labor Law to Federal unemployment compensation legislation. This latter legislation permitted States to disqualify nonprofessional employees of educational institutions from receiving summer recess unemployment insurance benefits if the employees had a "reasonable assurance” of continued employment following the recess (US Code, tit 26, § 3304, subd [a], par [6], cl [A], subcl [ii]). The appeal board also had available to it ample precedent in decisions from other jurisdictions, applying disqualifying provisions in Federal unemployment statutes barring benefits during summer recess to school professional employees with "contracts” for continued employment in the following academic year, that the term "contract” is not always to be given a strict construction and that a reasonable expectation of employment will serve (e.g., Hyduchak v Commonwealth of Pa., Unemployment Compensation Bd. of Review, 35 Pa Commw Ct 575; Harvey v Director of Dept. of Employment Security, — RI —, 385 A2d 1057 [RI]; Robinson v Administrator, Dept. of Employment Security, 356 So 2d 477 [La]; Williamson v Mississippi Employment Security Comm., 347 So 2d 978 [Miss]), in reaching these results it has been of no significance, for this consideration, that an employee to whom a notice of continued employment has been extended has failed — as had claimant Hess — to signify his acceptance of the continuation. A contract, within the meaning of an unemployment benefits ineligibility statute, may exist without a commitment on the part of the employee (see Matter of McCarroll [Ross], 64 AD2d 992). In substance, what is required is to establish that an employee of one academic year will be continued in employment by the educational institution in the following academic year. Evidence on which such a substantive conclusion may properly be predicated may be of differing sorts; the Federal statute specifies proof of a "reasonable assurance”, while subdivision 11 of our State statute calls for a "written contract” or an "individual contract”. That it is the substance of the assurance of continued employment rather than the form of its manifestation is confirmed when in subdivision 8 of our State statute "reasonable assurance” is employed and defined to require evidentiary proof in the form of a "written contract” (§ 590, subd 8).

Similarly, we reject the argument advanced by claimants that, because by enactment of chapter 675 of the Laws of 1977 the Legislature amended subdivision 10 of section 590 (disqualifying professional employees of educational institutions from summer recess benefits who had contracts for continued employment) by adding as a disqualifier a "reasonable assurance” of employment to the prior requirement of a "contract”, but adopted subdivision 11 (covering nonprofessionals) prescribing only a "written contract” or an "individual contract” as disqualifies, a much more stringent ineligibility test— namely, the existence of a formal contract — was being adopted for the latter class of school employees. We do not believe the conclusion claimants would draw is warranted. Rather, it would appear that the addition of the phrase "reasonable assurance” in subdivision 10 resulted from the fact that in 1976 Congress had made a similar addition to the Federal unemployment legislation to which the State Legislature was explicitly seeking to conform (Unemployment Compensation Amendments of 1976, Public L 94-566, § 115, subd [c]; 90 US Stat 2670-2671). Because there was no requirement for conformity by the State with Federal legislation as to nonprofessional employees, however, there was no need to include the phrase "reasonable assurance” in subdivision 11, which covered such employees. Its omission loses significance entirely if it be noted that the addition of the phrase in the Federal legislation applicable to professional employees, as to whom the disqualifying factor had theretofore been stated in terms of a "contract” only, was merely a "technical adjustment” (Harvey v Director of Dept. of Employment Security, — RI —, 385 A2d 1057, 1060 [RI], supra).

We are satisfied that the Industrial Commissioner in the case of each of the claimants now before us was warranted in determining that the mandate of the statute with respect to the existence of a "written contract” had been satisfied.

In each of the appeals the order of the Appellate Division should be affirmed.

Chief Judge Cooke

(dissenting). The majority today disregards the Legislature’s express provision of different standards governing unemployment eligibility for professional and nonprofessional public school employees. Because of this strained reading of section 590 of the Labor Law, I must dissent.

The issue in these cases concerns the eligibility of nonprofessional public school employees who are members of collective bargaining units for unemployment benefits during the summer recesses. The statute provides that such an employee, who is usually paid on an hourly basis, should be disqualified only when as a member of a collective bargaining unit he has a written contract for continued employment in the fall. The majority, however, applies the broader grounds of disqualification applicable to professional employees, who are generally employed through annual contracts that frequently take into account the summer recess. In so doing, the majority wipes away the requirement of a collective bargaining contract and allows revocable offers and assurances that do not rise to the status even of individual contracts to suffice.

Subdivision 11 of section 590 establishes two distinct categories of nonprofessional employees — those who are members of collective bargaining units and those who are not. Those who are members are ineligible for unemployment benefits "provided the claimant as a member of a collective bargaining unit has a written contract which continues his services in such capacity” after the summer recess (emphasis added). An employee who is not a member is ineligible if he or she has "an individual contract to perform services” after the recess. The majority correctly recognizes that the claimants here fall into the first category. But it errs in finding that to require a collective bargaining contract to disqualify employees in the first category places "unwarranted emphasis” on the statutory language. To require a collective bargaining agreement does no more than recognize the distinction drawn by the Legislature and accord the language its plain meaning. This is especially so because the second part of the subdivision speaks of "individual contracts” for nonmembers but makes no such reference regarding members of collective bargaining units. "When different terms are used in various parts of a statute or rule, it is reasonable to assume that a distinction between them is intended” (Matter of Albano v Kirby, 36 NY2d 526, 530).

There is an important reason to require a collective bargaining, rather than an individual, contract to disqualify members of collective bargaining units from unemployment benefits. When members of a bargaining unit select appropriate bargaining representatives those agents "shall be the exclusive representatives of all the employees in the appropriate unit for the purposes of collective bargaining” (Labor Law, § 705, subd 1). Public employees, under the Taylor Law, have the right to collectively bargain through representatives, and it is improper practice for an employer to interfere with this representation (Civil Service Law, §§ 202, 203, 208, 209-a). Thus, there can be no individual contracts between an employer and members of a collective bargaining unit. The majority disregards this fundamental principle.

Even if subdivision 11 could be read as allowing contracts other than the collective bargaining unit’s agreement, however, there would be no such contracts here. The majority finds it reasonable for the Unemployment Insurance Appeal Board to have constructed some form of "contract” out of two factors. When each of its two components is scrutinized, however, this "contract” evaporates. First, the board relied upon the "Triborough Doctrine”, which has been formulated by the Public Employment Relations Board (Matter of Triborough Bridge & Tunnel Auth. [Dist. Council 37 & Local 1396], 5 PERB 3064). The doctrine prevents an employer from unilaterally changing terms or conditions of employment that are mandatory subjects of bargaining when a bargaining agreement has expired and a new one is still being negotiated (see Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753). The majority reasons that if an employee individually reached agreement to work in the fall, the Triborough Doctrine could be used to define the terms of the employment and thus create a contract. The flaw with this reasoning, however, is that it would permit an employer to in effect negotiate separately with an individual employee and reach an individual "contract” that touched even on subjects of mandatory bargaining. This would run roughshod over the principle that the bargaining representative is the exclusive bargaining agent for the unit. If employers can negotiate with individual members, there is no "collective” bargaining. A second flaw with this reasoning is that in at least some of the cases here there was no binding obligation by the school district to rehire the employee: In one case the claimant never responded to the district’s letter. In a second the response was arguably conditional, and in a third the union has alleged that the acceptances were coerced. Absent such acceptance, the offers of continued employment were revocable and not binding (Rubin v Dairymen’s League Co-op. Assn., 284 NY 32; Petterson v Pattberg, 248 NY 86).

Considering these impediments to finding the existence of a contract here, it is not surprising that the majority concludes that "a reasonable expectation of employment will serve” to bar claimants (p 331). What the majority in effect does is read the more liberal disqualification standards for professional employees, contained in subdivision 10 (of section 590), into subdivision 11.

Subdivision 10 makes professional employees ineligible for summer unemployment compensation if they have either a "contract” or a "reasonable assurance” of continued employment for the following fall. Subdivision 11, in stark contrast, does not contain the alternative of a "reasonable assurance,” showing that the Legislature intended to distinguish teachers and other professional employees from nonprofessionals.

The alternative "reasonable assurance” was added to subdivision 10 by the Legislature in 1977, at the same time that it created subdivision 11. The majority argues that the different wording of the two sections has no significance because the Legislature was simply adopting changes required by Congress as a condition for continued Federal reimbursement. This argument misses the point. Congress amended the Federal statute (US Code, tit 26, § 3304, subd [a], par [6], cl [A], subcls [i], [ii]) in 1976 to require that States provide that "compensation shall hot be payable” to professional employees "if there is a contract or reasonable assurance” of continued employment (emphasis added). For nonprofessional employees, the Federal amendment said only that States could provide that "compensation * * * may be denied to any individual” who has a reasonable assurance of employment in the fall (emphasis added). The House Conference Report makes clear that this distinction was a conscious one (H Rep No. 94-1745).

Thus, Congress gave the Legislature no choice but to adopt legislation denying compensation to professional employees who had a reasonable assurance of continued work. It gave the States a choice as to whether to deny compensation to nonprofessionals who had only a reasonable assurance of reemployment, however, and this State’s Legislature opted not to deny compensation to these workers. The distinction drawn by Congress and the Legislature between a "contract” and a "reasonable assurance” is thus a lucid and conscious one. To conflate the two terms guts the legislation of its plain meaning.

In support of its position, the majority cites several cases that loosely interpreted the "contract” requirement. to bar school employees from recovering unemployment compensation. These cases dealt with professional employees, however, not nonprofessionals. At the time of these cases, neither the Federal statute nor this State’s Labor Law excluded nonprofessionals from receiving benefits over the summer, regardless of whether they had a contract for renewed employment in the fall. Indeed, in Robinson v Administrator, Dept. of Employment Security (356 So 2d 477 [La]), the court noted this different treatment and found that "the different functions and characteristics between teachers and other employees of the school system” provided a rational basis for excluding teachers from summer unemployment compensation when they had guarantees of continued employment while allowing nonprofessional employees to receive compensation even though they had formal contracts (id., at p 482). If there was a rational basis for this sharp difference in treatment prior to the 1976 Federal amendments, there is certainly a basis for the slight distinction made under current law.

The majority also bases its decision in part on deference to the unemployment appeal board’s interpretation of the term "contract” in subdivision 11. This determination should carry no weight. Where "the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

There thus is- nothing to support the majority’s finding of a contract or its reading of "contract” and "reasonable assurance” — two distinct concepts — as meaning the same thing. This interpretation wipes out the different treatment that the Legislature established for professional and nonprofessional school employees regarding eligibility for unemployment compensation, in effect merging subdivisions 10 and 11 of section 590 of the Labor Law. Only the Legislature should undertake such action.

The orders of the Appellate Division should be reversed.

Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur with Judge Jones; Chief Judge Cooke dissents and votes to reverse in a separate opinion.

In each case: Order affirmed, with costs. 
      
      . None of the collective bargaining agreements now before us included any provisions for employment of claimants La Mountain, White, Brant, Bunning, Williams or Hess. We have been informed that the cases now before us were selected to serve as precedents and that numerous other cases are being held in abeyance pending the outcome of these appeals. Nowhere is it suggested that an individual contract of hire has been found in any collective bargaining agreement.
     
      
      . Frequent references in the briefs of claimants’ counsel to the absence of a "job security clause” in the collective bargaining agreements to which these school districts were parties during the 1977-1978 school year appear to suggest that such a clause, if included, might serve as a contract of employment within the agreements. Whether or not that is so is not now necessary to decide in view of our disposition of these appeals. It should not be overlooked however that the present claimants were employed during the 1977-1978 school year for a fixed term coincident with the school year, at the end of which their employment under those contracts ceased by reason of expiration of term. A “job security clause” which mandated only the continuance of particular positions would not necessarily assure the present incumbents of continued employment.
     
      
      . In the case of the BaMwinsville district, continuation was not a factor because the collective bargaining agreement ran to June 30, 1979.
     