Griffin v. New Hampshire Dept. of Employment Sec.

• Decision Date: 28 February 1977
• Docket Number: No. 7285,7285
• Citation: 370 A.2d 278,117 N.H. 108
• Parties: William M. GRIFFIN v. NEW HAMPSHIRE DEPARTMENT OF EMPLOYMENT SECURITY et al.
• Court: New Hampshire Supreme Court

Page 278

370 A.2d 278

117 N.H. 108

William M. GRIFFIN v. NEW HAMPSHIRE DEPARTMENT OF EMPLOYMENT SECURITY et al.

No. 7285.

Supreme Court of New Hampshire.

Feb. 28, 1977.

Griffin, Harrington, Brigham & Ritzo, Portsmouth (Charles A. Griffin, Portsmouth, orally) for plaintiff.

Edward F. Smith, Andre J. Barbeau, Concord, Michael M. Black, Deerfield, Thomas W. Kelliher, Manchester, and Paul V. Kenneally, Concord (Mr. Barbeau orally), for New Hampshire Dept. of Employment Security.

New Hampshire Legal Assistance, George C. Bruno, Manchester, and H. Neil

Berkson, Keene (Mr. Berkson orally), as amici curiae.

LAMPRON, Justice.

Appeal by the plaintiff to the superior court under the provisions of RSA 282:5 G(1) (Supp.1975), (3) from a decision of the appeal tribunal of the department of employment security denying him benefits because he failed, without good cause, to accept available, suitable work. RSA 282:4 M (Supp.1975). The Trial Court (Douglas, J.) reversed the tribunal's decision and issued a decree, which we affirm, ordering the department to pay full benefits to plaintiff from and after September 22, 1974. The court further ordered the defendant to pay plaintiff's attorney's fees in the amount of $944.45. We set aside this part of the court's decree.

Plaintiff worked for 30 years as a piping detailer for the Portsmouth Naval Shipyard. In June 1972, due to a reduction in work force, plaintiff was laid off. He subsequently retired from his position at the Yard. From November 1972 to May 27, 1974, plaintiff, a life long resident of Portsmouth as well as a homeowner there, was employed by defendant United Engineers and Contractors, Inc. as a piping detailer on a power plant construction job in Newington. His rate of pay was $6.00 per hour. Because his work was completed and there was no other work for him to do, United Engineers laid him off. He filed for unemployment compensation benefits and was awarded and received benefits at the rate of $80 per week through the week ending September 21, 1974.

During the months of July through September 1974, plaintiff made personal contact with or sent resumes to several companies and to one employment agency. These companies were located in Maine, New Hampshire, Massachusetts, Ohio, and Pennsylvania. Plaintiff indicated that he was interested in work in the piping design field in the New England area. He also contacted the Portsmouth office of the department of employment security with regard to possible job referrals. He was informed by all these sources that no employment was available in his field in New England. However, in late September, General Devices, Inc. of Norristown, Pennsylvania, one of the companies he had contacted earlier, offered him a position at Greenwich, Connecticut, which is near the New York border.

The position offered was full time at a rate of pay of $11 per hour plus a subsistence allowance of $86 per week. Plaintiff refused the offer because he felt the distance from his residence, approximately 230 miles, was too great for him to come home on weekends. Plaintiff was 61 years old at the time and his wife did not want him to be so far from home. Plaintiff reported this offer and his refusal to the department, and he was told the matter would be taken under advisement. Plaintiff's benefits were disallowed 'from September 22, 1974 to October 19, 1974 and until available.' The department's appeal tribunal affirmed this decision.

I. PAYMENT OF BENEFITS

RSA 282:4 M (Supp.1975) provides that an individual shall be disqualified for benefits: 'If the commissioner finds that he has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the commissioner or to accept suitable work when offered him. . . .' In determining whether or not work offered a claimant is suitable, the commissioner is to consider, among other factors: 'The distance of the available work from his residence, but such distance shall not be substantially greater than that distance to all those places to which others living in the same town or city travel for work which utilizes similar or related skills or services, and also to where he acquired his currently available annual earnings. . . .' RSA 282:4 M(1)(f) (Supp.1975).

RSA 282:3 C (Supp.1975) provides that to be eligible for benefits, the commissioner must find that claimant 'is ready, willing and able to accept and perform suitable work on all the shifts and during all the hours for which there is a market for the services he offers and that he has exposed himself to employment to the extent commensurate with the economic conditions and the efforts of a reasonably prudent man seeking work.'

The department maintains that plaintiff's high skill is a factor to be taken into account in determining his labor market and the availability of work for him. By its very nature his type of work is performed in only a very few locations such as shipyards and power plants. To gain access to job vacancies plaintiff must expand the market area in which he offers his specialized skill. Other factors to be considered are the depressed economic condition which then prevailed and the fact that plaintiff retired from the Naval Shipyard thus ruling it out as a place of employment. RSA 282:4 M (Supp.1975).

The department argues further that the job offer made to him was in the job market in which plaintiff repeatedly sought employment and was precisely the job for which he was trained and experienced. It also argues that work at a location several hundred miles away which may not have been suitable in the first few weeks of unemployment was suitable after the passage of months of unemployment. RSA 282:4 M(1)(f) (Supp.1975). Plaintiff's refusal of this job offer, the department maintains disqualified him from receiving benefits. RSA 282:3 C (Supp.1975).

Employees of the department testified that distance has nothing to do with suitability. Plaintiff should have been willing to accept employment in Chicago or probably Pascagoula, Mississippi. Plaintiff should have been ready to 'pick up' and move. Although the department claims that plaintiff's job contacts were not sufficient to meet the test of a search for work by a reasonably prudent person, there was testimony by a witness for the defendant that plaintiff's efforts were both proper and reasonable.

Plaintiff testified that at the age of 62 he was not ready to 'pick up' and move from Portsmouth to a place 10 miles from New York City. He testified that he was willing to travel to work about 65 to 70 miles to Bath, Maine. A long time fellow employee at the Portsmouth Navy Yard testified that of the 200 pipe detailers employed there none commuted from Connecticut and all came from an area within 40 miles of the Yard.

The trial court found that plaintiff was ready to perform suitable work for which there was a market for the services he offers and that he exposed himself to employment as would a reasonably prudent man seeking work given the economic conditions. These findings were warranted by the evidence and the court properly ruled that plaintiff met the requirements for eligibility under RSA 282:3 C (Supp.1975) being 'ready, willing and able to accept and perform suitable work.' Chaisson v. Adams, 114 N.H. 219, 222, 317 A.2d 791, 793 (1974). The court thus properly found and ruled on the evidence that plaintiff had good cause to refuse the offer to work in Greenwich, Connecticut and that he should not have been disqualified for benefits under RSA 282:4 M (Supp.1975). We affirm the court's decree that plaintiff was entitled to full benefits from and after September 22, 1974. Industrial Commission v. Parra, 111 Colo. 69, 137 P.2d 405 (1943); Lauder v. Bd. of Review of Industrial Comm'n, 29 Utah 2d 121, 122-23, 506 P.2d 50, 51 (1973); 76 Am.Jur.2d Unemployment Compensation § 70 (1975); Freeman, Able to Work and Available for Work, 55 Yale L.J. 123, 124 (1945); see Goings v. Riley, 98 N.H. 93, 95 A.2d 137 (1953).

II. AWARD OF ATTORNEY'S FEES TO PLAINTIFF

The trial court allowed plaintiff his attorneys' fees and their disbursements in the amount of $944.45 to be paid by the department. The court's basis for this award is the following. The intent of the unemployment compensation law (RSA ch. 282) is to insure that a worker, undergoing greatly reduced income while out of work, could still net his compensation payments without fear of an attorney's lien on his benefits (RSA 311:13) or being 'charged' a fee by an officer of the court RSA 282:13 B (Supp.1975). If fees, flat or percentage had to be paid, claimants would either be unable to secure counsel for lack of money to pay a retainer or would lose even if they won by having their subsistence compensation reduced by attorney's fees. The award was ordered 'to avoid reducing Petitioner's award which was wrongfully withheld by the Department.' The award was made under...