Faria v. Director of Division of Employment Sec.

• Decision Date: 09 March 1966
• Citation: 215 N.E.2d 90,350 Mass. 397
• Parties: Joseph D. FARIA v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 90

215 N.E.2d 90

350 Mass. 397

Joseph D. FARIA v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Feb. 11, 1966.

Decided March 9, 1966.

Manuel Kyriakakis, Franklin, for petitioner.

Joseph S. Ayoub, Asst. Atty. Gen. (Robert N. Scola, Asst. Atty. Gen., and Israel L. Cohen, Boston, with him), for Director of the Division of Employment Security.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL, and REARDON, JJ.

WHITTEMORE, Justice.

This is an appeal from the decision of a judge of the First District Court of Bristol under G.L. c. 151A, § 42, affirming a decision of the Board of Review in the Division of Employment Security. The case arose on the application of the petitioner, Faria, for unemployment benefits under G.L. c. 151A, §§ 22, 23 and 24. The director of the division denied the claim, a review examiner (G.L. c. 151A, § 41) affirmed the decision and the board of review denied an application for a rehearing. The record includes the evidence before the review examiner.

The issue is whether, as required by G.L. c. 151A, § 24(b), Faria was 'available for work and unable to obtain work in his usual occupation or any other occupation for which he is reasonably fitted.' We resolve it under G.L. c. 30A, § 14(8)(g). See c. 151A, § 42.

The facts are not in dispute. The examiner, on supporting evidence, found inter alia, as follows: 'The claimant is president of * * * (Faria Brothers, Inc.) and owns fifty of the two hundred outstanding shares. His three brothers individually own fifty shares each. The business was incorporated in 1953 and is primarily engaged in framing new houses. The work of the corporation is normally done under contract, and the corporation is so well established that its bids are solicited by other contractors. * * * All of the brothers, including the claimant, do the carpentry work at an hourly wage. When the claimant filed his claim, the last job of the corporation had been completed on December 16, 1963. On December 27, 1963, the claimant returned to work for the corporation and continued in employment until January 11, 1964, when again no work was available. He returned to work on January 27, 1964, and worked until February 10, 1964, when another contract was completed. Since February 10, 1964, the claimant has done no work but, excluding the periods in which he was re-employed, as related above, he has consistently sought work as a carpenter with other employers, having made applications in the areas of Brockton, Foxboro, Sharon, Stoughton, Raynham and other surrounding towns and cities. * * * The claimant * * * is available for work with * * * (Faria Brothers, Inc.) whenever it secures a contract * * * to work * * *. (H)e would return to work for the corporation whenever it realized a new contract. In view of these facts, it is...