2004-876, APPEAL OF RONALD PELLETERI & a.

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Department of Employment Security
No. 2004-876
APPEAL OF RONALD PELLETERI & a.
(New Hampshire Department of Employment Security)
Argued: September 29, 2005
Opinion Issued: December 9, 2005
Devine, Millimet & Branch, P.A., of Manchester (Mark T. Broth and
Jennifer M.N. Koon, on the brief, and Mr. Broth orally), for the petitioners.
Kelly A. Ayotte, attorney general (Karen A. Schlitzer, assistant attorney
general, on the brief and orally), and Charles H. Bradley, III, of Concord, on the
brief, for the State.
GALWAY, J. The petitioners, Ronald Pelleteri and other similarly
situated employees of the employer, Pike Industries (Pike), appeal the denial of
unemployment benefits for a period of time equal to the number of weeks of
longevity pay each petitioner received from Pike. We affirm.
The certified record supports the following facts. Pike is engaged in the
manufacture, sale, and transportation of road paving materials and the
construction and paving of roads and highways. The majority of Pike’s
employees are employed on a seasonal basis. In September 2002, Pike
initiated a longevity pay program for its seasonal employees. On or about
November 1, 2002, longevity pay was distributed to eligible employees. In most
cases, this distribution preceded the date of the employee’s seasonal layoff.

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After the seasonal layoff occurred, each of the petitioners applied for
unemployment benefits.
The department of employment security (DES) certifying officer denied
petitioner Pelleteri’s unemployment benefits from December 15, 2002, to
January 4, 2003, concluding that the longevity pay constituted wages
pursuant to RSA 282-A:15, I, and applying those wages to the period
immediately following the seasonal layoff pursuant to RSA 282-A:14, III(a). The
other petitioners were denied unemployment benefits on the same basis. The
petitioners appealed to the appeal tribunal, where the appeals were
consolidated.
In their appeal, the petitioners argued that DES’ determination, applying
the longevity pay to the period immediately following each petitioner’s layoff,
was arbitrary and unreasonable. They asserted: (1) the longevity pay was a
bonus that was received in November but was earned in the prior calendar
year, and, therefore, there was “no [reasonable] relationship between the weeks
in which the bonus was earned or paid and the weeks it was applied to by the
DES”; and (2) DES’ determination was contrary to internal DES guidelines
governing bonuses.
The appeal tribunal affirmed DES’ determination, concluding that the
petitioners received wages in the form of a longevity pay bonus. The petitioners
requested the commissioner to reopen the appeal tribunal determination.
Characterizing the longevity pay as a bonus, they challenged the appeal
tribunal’s findings of fact and argued that the appeal tribunal erred in ruling
that the payment of the longevity bonus “anticipated” their seasonal layoff.
The commissioner reopened the appeal tribunal’s decision on a limited
basis, concluding that the appeal tribunal may have mistakenly used the word
“bonus” to describe the longevity pay program, and allowing the appeal
tribunal either to amend its decision and substitute the word “wages” for
“bonus,” or to make further rulings if the tribunal intended to rule that
longevity pay actually constitutes a “bonus.” The appeal tribunal’s subsequent
amended decision concluded that longevity pay constituted wages rather than
a bonus. The petitioners requested reopening of the amended decision, which
the commissioner denied.
The petitioners appealed the appeal tribunal’s amended decision to the
appellate board. Among other things, the petitioners argued for the first time
that RSA 282-A:14, III is unconstitutionally vague in that it contains no
guidance or standards regarding its application.
Prior to the appellate board hearing, Pike distributed the 2003 longevity
pay to its seasonal employees on September 15, 2003. Contrary to its

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application of the 2002 longevity pay, DES did not apply the 2003 longevity pay
to the weeks immediately following Pike’s seasonal employees’ layoffs.
The appellate board sustained the appeal tribunal’s determination, but
noted concerns regarding: (1) “the vagueness of RSA 282-A:14 III and the
statute’s failure to provide any criteria relative to the meaning of
reasonableness”; and (2) “the disparate treatment of the Appellant in the
application of RSA 282-A:14 III between the receipt of longevity pay for 2002
and 2003 and the opposite outcomes relative to eligibility for benefits in each of
those respective years.” The appellate board concluded: “This treatment, along
with the concerns for vagueness . . . would most certainly result in the Board’s
reversal of the Appeals Tribunal’s decision but for the limitations of RSA 282-
A:65.” The petitioners then filed a motion for reconsideration, which the
appellate board denied.
The petitioners now appeal the appellate board’s final orders denying
their 2002 unemployment benefits for a period commensurate with the number
of weeks of longevity pay received from Pike. They argue: (1) RSA 282-A:14, III
violates the Due Process Clause of both the Federal and State Constitutions; (2)
RSA 282-A:14, III violates the Equal Protection Clause of both the Federal and
State Constitutions; and (3) RSA 282-A:65 expressly grants the appellate board
authority to determine the constitutionality of RSA 282-A:14, III.
DES counters that: (1) RSA 282-A:67 limits our review to determinations
of the appeal tribunal and not the appellate board, except insofar as the
appellate board may have clarified or limited the record; and (2) the petitioners
waived their claims regarding the unconstitutionality of RSA 282-A:14, III,
because they failed to raise these issues before the appeal tribunal.
When considering an appeal of an administrative DES decision, “our
jurisdiction is limited to reviewing the record of the appeal tribunal for errors of
law, except insofar as that record may have been clarified or the issues limited
in the course of subsequent proceedings before the appellate [board].” Appeal
of Bosselait, 130 N.H. 604, 606 (1988) (citations omitted); see RSA 282-A:67, V
(1999). On appeal, we consider only issues that have been both timely raised
below and preserved for our review. Bosselait, 130 N.H. at 606. Thus, we first
consider whether the petitioners’ claims regarding the constitutionality of RSA
282-A:14, III (Supp. 2005) were preserved for our review.
The appellate board “provides an intermediate administrative appeal, in
which issues previously raised may be waived or narrowed; it does not provide
an opportunity to raise new issues for the first time.” Id. at 607-08. Issues
must be raised at the earliest possible time in order to grant trial forums a full
opportunity “to come to sound conclusions and to correct claimed errors in the
first instance.” Bosselait, 130 N.H. at 607 (quotations omitted). “[U]nless a

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claim is raised in the trial forum, there is no opportunity for a party to develop
a factual record supporting his theory of relief, or to make an offer of proof
sufficient to justify a demand to introduce relevant evidence and preserve an
issue for appeal.” Id.
Bosselait is squarely on point. In Bosselait, two part-time employees
appealed an appeal tribunal’s denial of unemployment compensation, asserting
that a portion of a statute, which the appeal tribunal relied upon, violated the
State equal protection standard and conflicted with the federal Rehabilitation
Act. Id. at 605, 606. However, the employees failed to raise these claims
before the appeal tribunal; instead, they first raised them in their request to
reopen the appeal tribunal’s decision, and again in their appeal of the appeal
tribunal’s decision to the appellate board. Id. at 605-06. In concluding that
the employees’ claims were not timely raised, we recognized that merely listing
the equal protection questions in their appeal to the appellate board was
insufficient to preserve them for consideration on appeal to this court. Id. at
607. We also noted that one employee’s remark to the appeal tribunal that the
relevant statutory provision “was discriminatory against the aged” was “not
sufficient to put anyone on notice that [the employee] thereby meant to raise a
constitutional issue.” Bosselait, 130 N.H. at 607.
Similar to Bosselait, the petitioners in this case failed to raise their
constitutional claims until after the appeal tribunal had reached a final
determination. In their appeal to the appeal tribunal, and to support their
general assertion that the certifying officer’s denial was arbitrary and
unreasonable, the petitioners argued that: (1) there was no relationship
between the weeks in which the longevity pay bonus was earned or paid and
when it was applied; and (2) the certifying officer’s determination was contrary
to internal DES guidelines governing bonuses. The petitioners’ arguments
neither articulated nor implicated the constitutional claims they subsequently
raised in their appeal to the appellate board. Consequently, the appeal
tribunal was denied an opportunity to address those issues. Furthermore, the
generalized assertions of unreasonableness that the petitioners did make
before the appeal tribunal did not constitute sufficient notice that they were
raising constitutional claims. Thus, we conclude the constitutional issues were
not preserved for our review.
Our conclusion comports with our recent decision in SNCR Corp. v.
Greene, 152 N.H. 223 (2005), a case involving the appeal of a New Hampshire
Department of Labor (DOL) wage claim decision. In that case, the employer
argued on appeal to the superior court that it had been deprived of its
constitutional right to a jury trial during the DOL hearing process. SNCR
Corp., 152 N.H. at 224-25. The superior court affirmed, and the employer
appealed. Id. On appeal, we declined to address either the constitutionality of
the underlying statutes and regulations or the alleged denial of its

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constitutional rights, concluding that the employer failed to preserve these
claims for our review because it failed to raise them at the administrative
hearing. Id. Similarly, the petitioners’ failure to raise the constitutionality of
RSA 282-A:14, III before the appeal tribunal deprived it of the opportunity to
address any alleged constitutional violations.
The petitioners also argue that RSA 282-A:65, I, expressly grants the
appellate board authority to make determinations regarding the
constitutionality of RSA 282-A:14, III. Our jurisdiction, however, is limited to
reviewing the record of the appeal tribunal for errors of law, except insofar as
the appeal tribunal’s record may have been clarified or the issues limited by the
appellate board. See RSA 282-A:67, V(a) (1999); Bosselait, 130 N.H. at 606. In
this instance, the appellate board neither clarified nor limited the appeal
tribunal’s record or determination. The appellate board’s observations
regarding potential issues surrounding the statutory language of RSA 282-
A:14, III, are insufficient to bring this issue within our jurisdiction.
Accordingly, for the foregoing reasons, we affirm the appeal tribunal’s
determination, and decline to address the constitutionality of RSA 282-A:14,
III.
Affirmed.
BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,
concurred.