
    [731 NE2d 600, 709 NYS2d 884]
    In the Matter of the Claims of Sigried Goodman et al., Appellants. Barnard College, Respondent; Commissioner of Labor, Respondent.
    Argued March 29, 2000;
    decided May 16, 2000
    
      POINTS OF COUNSEL
    
      Levy, Ratner & Behroozi, P. C., New York City (Daniel
    
    
      Engelstein and Veronica Villaneuva of counsel), for appellants.
    I. This appeal raises issues of law over which the Court of Appeals has plenary review. (Matter of Fisher [Levine], 36 NY2d 146; Matter of Dresher [Lubin], 286 App Div 591; Matter of Centonze [Corsi], 1 AD2d 523.) II. The decisions below erroneously concluded that Labor Law § 590 (11) alters the section 592 right to benefits starting with the eighth week of a strike. (Yerdon v Henry, 91 F3d 370; Matter of Judge Rotenberg Educ. Ctr. v Maul, 91 NY2d 298; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Matter of Echevarria [Corsi], 273 App Div 1046; Matter of Vingoe [Bethlehem Steel Co.], 285 App Div 160; Matter of Kelley [City Volunteer Corps — Hartnett], 166 AD2d 822; Matter of Oakwood Cemetery Assn. [Catherwood], 20 AD2d 590.) II. The determination that claimants had reasonable assurance of employment in the fall semester is premised upon a manifest misunderstanding of the applicable Labor Law principles. (National Labor Relations Bd. v Mackay Radio & Tel. Co., 304 US 333; National Labor Relations Bd. v Katz, 369 US 736; National Labor Relations Bd. v Pratt & Whitney Air Craft Div., 789 F2d 121.) IV. Even if initially disqualified under section 590 (11), claimants are entitled to retroactive benefits under section 590 (11) (d) since they were still striking on August 18, 1996 — the beginning of the fall semester.
    
      Putney, Twombly, Hall & Hirson, L. L. P., New York City (Daniel F. Murphy, Jr., James E. McGrath, III, and Marc B.
    
    
      Zimmerman of counsel), for Barnard College, respondent.
    I. The Board’s determination that Labor Law § 590 (11) disqualifies claimants from receiving unemployment insurance benefits due to the reasonable assurance of their continued employment for the fall 1996 academic semester is supported by substantial evidence. (Matter of Fisher [Levine], 36 NY2d 146; Matter of Sierant [Catherwood — General Mills], 24 NY2d 675; Matter of Field Delivery Serv. [Roberts], 66 NY2d 516; Matter of Di Maria v Ross, 52 NY2d 771; Matter of Bernstein [Catherwood], 30 AD2d 1028, cert denied sub nom. Bernstein v Catherwood, 395 US 928, 987; Matter of Sifakis [Roberts], 133 AD2d 511; National Labor Relations Bd. v Mackay Radio & Tel. Co., 304 US 333; National Labor Relations Bd. v Katz, 369 US 736.) II. Labor Law § 592 is inapplicable to the instant matter. (Matter of Kelly [Catherwood], 33 AD2d 830, 29 NY2d 877; Matter of Heitzenrater [Hooker Chem. Corp. — Catherwood], 19 NY2d 1; Matter of Burger [Corsi], 277 App Div 234; Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114.)
    
      Meyer, Suozzi, English & Klein, P. C., Mineola (Jordan Rossen of counsel), and Colleran, O’Hara and Mills, Garden City 
      (Edward J. Groarke of counsel), for New York State AFL-CIO, amicus curiae.
    
    I. Where there is no dispute over material facts, the Board’s interpretation of the statute and its legal conclusions from the undisputed facts are not entitled to the deference afforded credibility determinations or other findings of fact. (Matter of Gruber [New York City Dept. of Personnel— Sweeney], 89 NY2d 225; Matter of Halperin [New York City Bd. of Educ. — Roberts], 102 AD2d 933.) II. Labor Law § 590 (11) should only be applied to educational institution employees whose unemployment is due to their employer’s seasonal break period. (Matter of Heitzenrater [Hooker Chem. Corp. — Catherwood], 19 NY2d 1; New York Tel. Co. v New York State Dept. of Labor, 566 F2d 388, 440 US 519.) III. Labor Law § 590 (11) may not be applied to disqualify otherwise eligible claimants when their employer did not take reasonable steps to assure claimants or their union that claimants would not be replaced and that they would return to their jobs on August 18, 1996 or when the labor dispute ended. (Matter of La Mountain [Westport Cent. School Dist. — Ross], 51 NY2d 318; National Labor Relations Bd. v Mackay Radio & Tel. Co., 304 US 333; New York Tel. Co. v New York State Dept. of Labor, 566 F2d 388.) IV. The New York Unemployment Insurance Law is a beneficial statute and must be liberally construed to pay benefits and avoid disqualification. (New York Tel. Co. v New York State Dept. of Labor, 566 F2d 388; Matter of Walker [Reader’s Digest — Catherwood], 28 AD2d 256; Matter of Faccio [Catherwood], 37 AD2d 633, 31 NY2d 702; United States v Silk, 331 US 704; Sayers v Gardner, 380 F2d 940; St. Luke’s Hosp. Assn. v United States, 333 F2d 157; Steward Mach. Co. v Davis, 301 US 548.) V. Under unemployment insurance laws, the employer has the burden to prove that an otherwise eligible claimant is disqualified. Barnard did not prove that any claimant had reasonable assurance of being employed in the new term or when the strike ended and of not being replaced. (Federal Trade Commn. v Morton Salt Co., 334 US 37.)
   OPINION OF THE COURT

ClPARICK, J.

This is an appeal by employees of Barnard College from an order of the Appellate Division which affirmed a determination of the Unemployment Insurance Appeal Board that denied them benefits. The employees had gone on strike against Barnard six weeks before the end of the spring semester in 1996. They claim that the Appeal Board, in denying them unemployment insurance benefits, improperly relied on Labor Law § 590 (11), which prohibits payment of benefits during an academic recess or holiday if the employee has a “reasonable assurance” of employment for the following academic term. Petitioners contend that Labor Law § 590 (11) has no application here as they were not on academic recess, but on strike. In their view, only Labor Law § 592 applies, which suspends unemployment insurance benefits for a period of seven weeks in the event of a strike. We disagree with petitioners and conclude that under the circumstances presented Labor Law § 590 (11) and § 592 can be harmonized, and that section 592 does not preclude the application of section 590 (11).

Nevertheless, we conclude that it was error for the Appeal Board and the Appellate Division to rely on the parties’ expired collective bargaining agreement through the operation of the “Triborough Doctrine.” They used this public employee doctrine to support the conclusion that each claimant had a “reasonable assurance” of fall semester employment. Since this constitutes an error of law in arriving at the decision, we remit for consideration of the “reasonable assurance” question, free of reliance on the expired collective bargaining agreement.

Petitioners were employed by Barnard College during the 1995/1996 academic year in various nonprofessional capacities, including desk attendant positions. All petitioners were members of Technical Office and Professional Union Local 2110, UAW, AFL-CIO (Union). The parties operated under a collective bargaining agreement (CBA), which prohibited Barnard from terminating petitioners without good cause. The CBA expired on December 31, 1995. According to the CBA, petitioners were designated as hourly wage, permanent employees of Barnard. Some had been employed by the college for over 10 years. Barnard worked on a traditional two-semester system, fall and spring, and although the school had a summer session, petitioners were not required to work during the summer. In past years, Barnard inquired as to who among the desk attendants would be interested in working during the summer and also typically sent letters to those in desk attendant positions informing them of when they were expected to report to work in the fall. Barnard did not send such letters to the non-desk attendants.

During 1996, the Union and Barnard attempted to negotiate a new collective bargaining agreement. Failing to reach agreement, however, petitioners struck on February 22, but returned to work on March 5. On March 15, Barnard sent a letter to all desk attendants, inquiring as to who would be interested in working during the summer session and that such assignments would be made based on seniority.

With no new agreement, petitioners again struck on April 10, six weeks before the end of the spring semester. The strike lasted until September 13, approximately one month into the fall semester. During the strike, Barnard did not send letters to the desk attendants regarding work during the fall semester. Barnard was under the impression that communicating directly with the striking employees would have violated the National Labor Relations Act.

In late May and early June 1996, petitioners filed for unemployment insurance benefits. Labor Law § 592 provides that for unemployment due to an industrial controversy, including a strike, “benefit rights * * * shall be suspended during a period of seven consecutive weeks beginning with the day after” the employee lost employment due to the strike (Labor Law § 592 [1]). The local unemployment insurance office determined that benefits were appropriate. Barnard, however, objected and requested a hearing on the ground that Labor Law § 590 (11) precluded benefits. Section 590 (11) prohibits payment of benefits to nonprofessional employees of educational institutions for “any week commencing during the period between two successive academic years or terms provided there is a reasonable assurance that the claimant will perform services in such capacity for any such institution or institutions for both of such academic years or terms” (emphasis added). As relevant to petitioners, the benefit calculation rules that apply where there is “reasonable assurance” of employment for the following semester require that the wages during the past academic year — on which unemployment insurance benefits are based — must be disregarded. In other words, no unemployment insurance benefits can be distributed to a claimant, still employed, but on summer break.

After a hearing, the Administrative Law Judge (ALJ) overruled Barnard’s objections and held that for all petitioners “there must be an affirmative expression of intent to rehire made to the claimants in order to establish the [reasonable] assurance.” In the ALJ’s view, although an actual letter was not required, the evidence and testimony failed to establish that such an affirmative expression had been communicated to the petitioners to support a finding of “reasonable assurances.”

The Unemployment Insurance Appeal Board disagreed and reversed the ALJ’s determination. Based on the record before the ALJ, it concluded that each claimant had a “reasonable assurance” of employment for the fall semester because (1) claimants were considered permanent and not temporary employees; (2) as a matter of past practice, claimants historically had “a right to return to work at the start of the Fall semester”; (3) the terms of the expired CBA continued in effect by virtue of the “Triborough Doctrine” (see, Matter of La Mountain [Westport Cent. School Dist. — Ross], 51 NY2d 318), thus supporting their right to return to work for the fall semester; and (4) during the strike, although Barnard had the right under Federal law to hire replacement workers, it took no steps to do so.

On petitioners’ appeal, the Appellate Division affirmed. It noted that the issue “distil [led] to whether claimants received ‘reasonable assurance’ of employment” (259 AD2d 907, 908), and concluded that past practices as well as the expired CBA which remained in effect until a new one was negotiated, gave claimants the requisite “reasonable assurance” of fall semester employment. We granted petitioners leave to appeal and reverse because of the error of law in applying the “Triborough Doctrine” to this private sector labor-management dispute.

Petitioners primarily contend that Labor Law § 590 (11) and § 592 cannot be reconciled, and that only section 592 applies here. We disagree. It is true that the two statutory provisions address different situations, with section 590 (11) guarding against the distribution of unemployment insurance benefits merely because employment was interrupted by an academic recess and with section 592 maintaining the “principle of governmental neutrality” in the face of an industrial controversy by suspending benefits for seven weeks if the claimant-worker is unemployed due to a strike (Matter of Heitzenrater [Hooker Chem. Co. — Catherwood], 19 NY2d 1, 7 [citations omitted]). This case, however, gives us both situations, and nothing in the statutes themselves, the unemployment insurance legislative scheme, or the legislative history of these statutes suggests that one is to have primacy over the other. Expressed another way, “[i]t is not the function of the court * * * to declare one statute the victor over another if the statutes may be read together, without misdirecting the one, or breaking the spirit of the other” (Matter of Foley v Bratton, 92 NY2d 781, 787; see, Morris Plan Indus. Bank v Gunning, 295 NY 324, 330-331; Matthews v Matthews, 240 NY 28, 36).

The tension between these two statutes may benefit from legislative refinement, but nothing prevents section 590 (11) and. section 592 from operating together. There is no undermining of section 592’s statutory purpose in allowing section 590 (ll)’s disqualification of benefits to operate during a break between semesters. Indeed, if section 592 alone were to apply, it would neutralize section 590 (11) during industrial controversies that straddle a summer recess such as was present here. Without good reason however, we cannot interpret one statute to nullify another when both are part of the same statutory scheme. Here, although the strike lasted through the entire summer, it began less than seven weeks — the section 592 (1) threshold — before the summer recess. Once the summer recess began, the requirements of section 590 (11) took effect, along with the “reasonable assurance” of employment provision for the following academic semester.

Thus, the question in this case boils down to whether there were “reasonable assurances” under Labor Law § 590 (11) that petitioners could return to their employment after the summer recess. In deciding this issue, however, both the Appeal Board and the Appellate Division erred by relying on the “Triborough Doctrine” to support their determinations. As limited by Matter of Board of Coop. Educ. Servs. v New York State Pub. Empl. Relations Bd. (41 NY2d 753), the “Triborough Doctrine” seeks to preserve the status quo in situations where a collective bargaining agreement between a public employer and its employees has expired and a new one has yet to be agreed upon. In certain instances, the terms and conditions of the expired CBA continue in effect until a new agreement is negotiated (Matter of La Mountain [Westport Cent. School Dist. — Ross], 51 NY2d 318, 330, supra', but see, Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336).

Notably, the “Triborough Doctrine” has never been applied in the private employment context because the doctrine is grounded in the limitations imposed on public employee organizations by the Civil Service Law (Matter of Triborough Bridge & Tunnel Auth. [District Council 37], 5 PERB 3064; see, Civil Service Law §§ 209, 210). Moreover, both parties now agree that in this case, the doctrine cannot supercede an employer’s rights under Federal law to replace temporarily or permanently a striking worker (see, National Labor Relations Bd. v Mackay Radio & Tel. Co., 304 US 333, 345-346). Thus, any reliance by the Appeal Board on the “Triborough Doctrine” to find that employees rights under the expired contract constituted reasonable assurance was misplaced. Our review is limited to the legal question of whether the Appeal Board’s decisión regarding “reasonable assurances” was supported by substantial evidence (Matter of Di Maria v Ross, 52 NY2d 771, 772; Matter of Fisher [Levine], 36 NY2d 146, 150; Matter of Sierant [Catherwood — General Mills], 24 NY2d 675, 679). Because an error of law was made in the application of the “Triborough Doctrine,” we remit for a plenary consideration of the “reasonable assurance” question, free of reliance on the expired collective bargaining agreement.

Further, we likewise reject petitioners’ remaining contention that under Labor Law § 590 (11) (d) the denial of unemployment insurance benefits was improper because the strike lasted several weeks into the fall semester. Section 590 (11) (d) provides that “a claimant who was not offered an opportunity to perform services for the educational institution for the second of such academic years or terms shall be entitled to be paid benefits retroactively” (Labor Law § 590 [11] [d]). Here, it is undisputed that once the strike settled, petitioners returned to work for the fall semester, and under these circumstances, petitioners cannot claim the benefit of this statutory provision.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to that Court with directions to remand to the Unemployment Insurance Appeal Board for further proceedings in accordance with this opinion.

Judges Bellacosa, Smith, Levine, Wesley and Rosenblatt concur; Chief Judge Kaye taking no part.

Order reversed, etc.  