Appeal of Durocher

629 A.2d 94, 137 N.H. 437, 1993 N.H. LEXIS 98
CourtSupreme Court of New Hampshire
DecidedJuly 19, 1993
DocketNo. 91-544
StatusPublished
Cited by2 cases

This text of 629 A.2d 94 (Appeal of Durocher) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Durocher, 629 A.2d 94, 137 N.H. 437, 1993 N.H. LEXIS 98 (N.H. 1993).

Opinion

Horton, J.

The pro se claimants, Arthur H. Durocher and William F. Bertholdt, appeal from decisions of two appeal tribunals of the department of employment security (DES), denying them unemployment compensation because they had substantially removed themselves from the labor market and because they were not unemployed individuals as defined by ESA 282-A:14 (1987 & Supp. 1992). We reverse and remand.

The claimants, employees of Sanders Associates, Inc., were laid off in August 1990 due to lack of work. In September of the same year, the claimants and another former employee of Sanders Associates formed a corporation known as Total Quality Manpower, Inc. to provide quality assurance engineering services. In addition, they created the corporation to provide themselves with a professional office from which to execute their job search. It provided the economies of scale for office expenses such as telephone services and a [439]*439means for networking among businesses and for contacts in their field.

The claimants each made a $2,500 initial investment in the corporation. They subsequently supplemented their interests until each totaled $4,500. They used the invested money to acquire an office, furniture, subscriptions, a computer, and part-time office support staff. Each principal owned eighty of three hundred corporate shares, with the corporation retaining sixty shares. During the benefits period the corporation had no clients, contracts or income.

Besides their corporate activities, the claimants actively engaged in searching for individual employment. Although both claimants spent business days at the corporate offices, they mixed corporate and job search activities. Durocher spent roughly forty hours per week at the office, with fifteen to twenty hours dedicated to his search for employment. Bertholdt spent thirty or more hours in the office per week, roughly half spent searching for employment.

The claimants had two methods for contacting employers. The first was the time-honored method of contacting the employer directly, either by phone or by resume. The second approach was to contact a company under their corporate guise. If the company lacked an interest in contracting with the corporation, then the claimants used the contact as an opportunity to introduce themselves as job applicants. The record fails to show what percentage of employers the claimants contacted under each method. Durocher gave no oral testimony on the number of employers he had contacted individually, but the record shows that in the period from December 3, 1990, to January 21, 1991, he contacted at least thirty-seven employers. Bertholdt testified that on average he contacted one employer per day. The claimants’ contacts included employers from around the United States and Canada. Both claimants assured the DES, both orally and in writing, that they would take any job in quality assurance engineering in any reasonable location.

In late November and early December 1990, the claimants applied for unemployment compensation, Durocher in Nashua and Bertholdt in Laconia. The certifying officers found them ineligible because they were self-employed, and, thus, not unemployed within the meaning of the unemployment statutes. Each claimant appealed to a DES appeal tribunal. The respective tribunals found each claimant had become a self-employed entrepreneur and had substantially removed himself from the labor market. As such, the tribunals found that the claimants were not unemployed as defined by RSA 282-A:14, I (1987) and that they were ineligible for benefits under RSA 282-A:31, 1(c) and (d) (1987).

[440]*440The claimants subsequently requested that the commissioner reopen their cases, but their requests were denied. They next appealed to the DES appellate board, which held a joint hearing on June 14, 1991. The appellate board affirmed the two tribunal decisions. The claimants moved for reconsideration, were denied, and then appealed to this court.

On appeal the DES argues that the claimants fail to meet the threshold requirement of unemployment, making them ineligible for unemployment compensation benefits. The DES also argues that even if the claimants were unemployed, they substantially removed themselves from the labor market and, therefore, are ineligible for benefits. The pro se claimants, in a refreshingly short two paragraph argument, contend they were unemployed under the unemployment compensation statutes. They also contend that they have continuously been “ready, willing, and able to take full time employment” and were, therefore, attached to the labor market.

When reviewing decisions of the DES “we will not substitute our judgment for that of the DES regarding the weight of the evidence on questions of fact.” Appeal of Work-A-Day of Nashua, 132 N.H. 289, 291, 564 A.2d 445, 447 (1989). “We will, however, reverse the appeal tribunal where its conclusions are affected by an error of law or are clearly erroneous.” Appeal of Swift, 134 N.H. 177, 179, 589 A.2d 590, 592 (1991).

We start our analysis with the issue of the claimants’ unemployment status. A person entitled to receive unemployment compensation benefits must be “unemployed.” RSA 282-A:31, I (1987). RSA 282-A:14 provides the definitions for unemployment, both partial and total. We hold that during the claim period the claimants were not totally unemployed as defined by RSA 282-A:14, I. It states that “[a]n individual shall be deemed ‘totally unemployed’ in any week with respect to which no wages are payable to him and during which he performs no services.” The claimants concede that they were performing services for their corporation during the claim period. By so doing they were not totally unemployed.

The claimants, however, contend that RSA 282-A:9, IV(n) (1987 & Supp. 1992) provides an applicable exception, stating that the term “employment” shall not include “[s]ervice performed on behalf of or for a corporation or association by an officer or director thereof, for which service no wages . . . are paid or payable to such officer or director or any person, organization or association.” The claimants contend that they are providing service to a corporation and neither they nor the corporation have received any income. RSA 282-A:9 [441]*441provides the definition of “employment” that is used for purposes of determining the contributions to, and the charges against, employer accounts. It does not define “unemployment,” which is used for purposes of determining claimant benefits. The RSA 282-A:9 definition of employment is used in the fund management provisions of RSA 282-A:69-:98 (1987 & Supp. 1992). The only time RSA 282-A:9 plays an express role in determining claimant benefits is under RSA 282-A:32, I (1987 & Supp. 1992), where the nature of a claimant’s employment is used to determine when a claimant, previously disqualified for benefits, becomes requalified.

The claimants cite Roukey v. Riley, 96 N.H. 351, 77 A.2d 30 (1950), for the proposition that this court has applied RSA 282-A-.9 to the definition of unemployment. The proposition, however, is incorrect because Roukey did not address the definition of unemployment. In Roukey,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Appeal of Williamson
671 A.2d 112 (Supreme Court of New Hampshire, 1996)
Appeal of Hickey
660 A.2d 1098 (Supreme Court of New Hampshire, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
629 A.2d 94, 137 N.H. 437, 1993 N.H. LEXIS 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-durocher-nh-1993.