Grosso v. Maine Unemployment Ins. Comm'n

• Court: Superior Court of Maine
• Decided: February 27, 2014
• Docket: CUMap-13-046
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. AP~-:::.046/ -ri;·~'- CAAf{) ~ c9 d.7/.2iJI1 _y yv ' /

JASON GROSSO,

Plaintiff

v.

MAINE UNEMPLOYMENT INSURANCE COMMISSION,

Defendant

Before the court is Jason Grosso's appeal from a July 29, 2013 decision of the

Maine Unemployment Insurance Commission upholding the denial of unemployment

benefits. Grosso originally had a hearing in March 2013 before an administrative

hearing officer, and received another hearing when he appealed the hearing officer's

decision to the Commission.

On an appeal of this nature the court's role is to determine whether the

Commission correctly applied the law and whether its findings are supported by any

competent evidence. McPherson Timberlands Inc. v. Unemployment Insurance

Commission, 1998 ME 177

of the Commission unless the record before the Commission compels a contrary result.

ld. The court also cannot substitute its own judgment for that of the agency and must

affirm findings of fact if they are supported by substantial evidence in the record.

Rangeley Crossroads Coalition v. Land Use Regulation Commission, 2008 ME 115

955 A.2d 223, 227. Thus, even if the court would have assessed the evidence differently, it is the

agency's role to determine credibility and to reconcile conflicts in the evidence. See

Sprague Electric Co. v. Maine Unemployment Insurance Commission, 544 A.2d 728, 732

(Me. 1988).

This case turns on whether Grosso, a master plumber in a highly specialized

field, has been seeking work in a self-employment venture or whether he has been

unsuccessfully seeking available work from other employers as an employee.

The record establishes that Grosso's experience as a plumber has involved

pipefitting work for Fairchild Semiconductor. Until June 2012 he performed work for

Fairchild Semiconductor as an employee for a plumbing business owned or partially

owned by his father. He has always been a member of the Plumbing and Pipefitters

Union Local 716.

In June 2012, when his father's business was facing bankruptcy, Grosso

established a business of his own, Pure Piping LLC, in order to continue performing

pipefitting work for Fairchild Semiconductor. Grosso was both the owner of that

business and an employee of that business. However, Pure Piping's work for Fairchild

Semiconductor dried up during the last few months of 2012, and Grosso was not able to

secure any pipefitting work with the only other semiconductor business in Maine. He

has since been looking for work and applied for unemployment benefits in December

2012.

There appears to be no dispute that Grosso would be eligible for unemployment

benefits if he has been unsuccessfully looking for work as an employee rather than

looking for work for his business. The governing statute provides, inter alia, that in

order to qualify for benefits, an applicant must be "actively seeking work in accordance

2 with the regulations of the Commission." 26 M.R.S. § 1192(3). The Commission

regulation that is applicable here provides as follows:

An individual whose primary objective is performing services in self-employment will not be considered to be an unemployed individual for purposes of [26 M.R.S. § 1043(17)]. "Primary objective" means that the individual is engaging in or in the process of establishing a self- employment venture and is not available for and/ or willing to work as an employee for another employer on a full-time basis.

12-172 C.M.R. ch. 9.3.

There is evidence in the record to support the Commission's decision that, at

least as of the time he first applied for unemployment benefits and at the time of a

February 27, 2013 hearing before an administrative hearing officer, Grosso's primary

objective was to obtain work for the business in which he was self-employed. E.g., R.

84, 123, 141-42, 159-60. This is true even though (1) there is evidence that Grosso had

also been looking through the union for work as an employee for other employers and

(2) the Department of Labor claims adjudicator acknowledged that she thought that his

efforts to find work through the union were not for himself but for his company. R. 89.

There is still sufficient evidence, including Grosso's own statements, to support the

Commission's decision that Grosso's primary objective was to pursue his self-employed

work.

Notably, however, the Commission's decision finds that Grosso's prior objective

was to obtain business for his company "at the time period in dispute." R. 3. Moreover,

its ultimate decision was that Grosso was ineligible for benefits "from December 9, 2012

and until he meets the unemployed individual requirements of the law." R. 3 (emphasis

added). There was uncontroverted evidence that as time went on, Grosso had looked

3 for work as. an employee. He had done so by attempting to find work through the

union, as he is requited to do under union rules, but he had been unsuccessful. 1

Under the applicable regulation, Grosso is not ineligible just because he is the

owner of a business in which, if there were business opportunities available, he would

be self-employed. He is only disqualified if he is "engaging in . . . a self-employment

venture and is not available for and/ or willing to work as an employee for another

employer on a full-time basis." 12-172 C.M.R. ch. 9.3 (emphasis added). Moreover,

under the statute Grosso cannot be denied benefits for failing to accept non-union work.

26 M.R.S. § 1193(3)(B)(3).

As far as the court can tell, the Commission did not discount Grosso's evidence

that as time had gone on, he had attempted to find full time work as an employee for

another employer. As noted above, its ruling expressly involved "the time period in

dispute" and left open the possibility that he would be eligible in the future. Moreover,

the Department's claims adjudicator specifically acknowledged that she thought the

facts had changed since she had interviewed Grosso in January 2013. R. 94.

Accordingly, the decision of the Commission is affirmed without prejudice to

Grosso's ability to show that at some point subsequent to the period in dispute before

the Commission, he became eligible for benefits.

The entry shall be:

The July 29, 2013 decision of the Commission denying eligibility for benefits is affirmed. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

1 Grosso testified that because he has only worked as a pipefitter in a semiconductor plant and has no household or other plumbing experience, he has been turned down for other jobs, in part because he would need training to perform the other work, R. 60, 65.

4 Dated: February 2-7 2014

Thomas D. Warren Justice, Superior Court

5 CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

1 WeJ'J u~ S f\ 11-o 'n ey ELIZABE~H WYMAN, ESQ 6 STATE HOUSE STATION AUGUSTA, ME 04333-0006

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CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

9\c-.~ n t \ ~ '> 1\ \1-D,,e_/ ANDRE J HUNGERFORD, .ESQ PO BOX 7584 PORTLAND, ME 04112