2004-876, APPEAL OF RONALD PELLETERI & a.

cases, this distribution preceded the date o f the employee’s seasonal layoff. November 1, 2002, longevity pay was distributed to eligible employees. In most initiated a longevity pay program for its seasonal employees. On or about employees ar e employed on a seasonal basis. In September 2002, Pike construction and paving of roads and highways. The majority of Pike’s manufacture, sale, and transportation of road paving materials and the The certified record supports the following facts. Pike is engaged in the

longevity pay each petitioner received f rom Pike. We affirm. unemployment benefits for a period of time equal to the number of weeks of situated employees of the employer, Pike Industries (Pike), appeal the denial of GALWAY, J. The petitioners, Ronald Pelleteri and other similarly

brief, for the State. general, on the brief and orally), and Charles H. Bradley, III, of Concord, on the Kelly A. Ayotte, attorney general (Karen A. Schlitzer, assistant attorney

Jennifer M. N. Koon, on the brief, and Mr. Broth orally), for the petitioners. Devine, Millimet & Branch, P.A., of Manchester (Mark T. Broth and

(New Hampshire Department of Employment Security) APPEAL OF RONALD PELLETERI & a.

No. 2004 - 876 Department of Em ployment Security

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

pay to its seasonal employees on September 15, p. 2 2003. Contrary to its Prior to the appellate board hearing, Pike distributed the 2003 longevity

guidance or standards regarding its appl ication. that RSA p. 2 282 - A:14, III is unconstitutionally vague in that it contains no appellate board. Among other things, the petitioners argued for the first time The petit ioners appealed the appeal tribunal’s amended decision to the

the commissioner denied. a bonus. The petitioners requested reopening of the amended decision, which amended decision concluded that longevity pay constituted wages rather than longevity pay actually constitutes a “bonus.” The appeal tribunal’s subsequent “bonus,” or to make further rulings if the tribunal intended to rule that tribunal either to amend its decision and substitute the word “wages” for “bonus” to describe the longevity pay program, and allowing the appeal basis, concluding that the appeal tribunal may have mi stakenly used the word The commissioner reopened the appeal tribunal’s decision on a limited

that the payment of the longevity bonus “anticipated” their seasonal layoff. tribunal’s findings of fact and argued that the appeal tribunal erred in ruling Characterizing the longevity pay as a bonus, they challenged the appeal requested the commissioner to reopen the appeal tribunal determination. petitioners received wages in the form of a longevity pay bonus. The petitioners The appeal tribunal affirmed DES’ determination, concluding that th e

governing bonuses. DES”; and ( p. 2 2) DES’ determination was contrary to internal DES guidelines in which the bonus was earned or paid and the weeks it was applied to by the year, and, therefore, there was “no [reasonable] relationship b etween the weeks bonus that was received in November but was earned in the prior calendar was arbitrary and unreasonable. They asserted: (1) the longevity pay was a the longevity pay to the period immed iately following each petitioner’s layoff, In their appeal, the petitioners argued that DES’ determination, applying

consolidated. petitioners appealed to the appeal tribunal, where the appeals were other petitioner s were denied unemployment benefits on the same basis. The immediately following the seasonal layoff pursuant to RSA p. 2 282 - A:14, III(a). The pursuant to RSA 282 - A:15, I, and applying those wages to the period January 4, 2003, concluding that the longevity pay constituted wages petitioner Pelleteri’s unemployment benefits from December 15, 2002, to The department of employment security (DES) certifying officer denied

unemployment benefits. After the seasonal layoff occurred, each of the petitioners applied for p. 3 3

first instance.” Bosselait, 1 p. 3 30 N.H. at 607 (quotations omitted). “[U]nless a opportunity “to come to sound conclusions and to correct claimed errors in the must be raised at the earliest possible time in order to grant trial forums a full an opportunity to raise new issues for the first time.” Id. at 607 - 08. Issues which issues previously raised may be waived or narrowed; it does not provide The appellate board “provides an intermediate administrative appeal, in

282 - A:14, III (Supp. 2005) were preserved for our review. consider whether the petitioners’ claims regarding the constitutionality of RSA below and preserved for our review. Bosselait, 1 p. 3 30 N.H. at 606. Thus, we first (1999). On appeal, we consider only issues that have been both timely raised of Bosselait, 130 N.H. 604, 606 (1988) (citations omitted); see RSA 282 - A:67, V in the course of subsequent proceedings before the appellate [board].” Appeal law, except insofar as that record may have been clarified or the issues limited jurisdiction is limited to reviewing the record of the appeal tribunal for errors of When considering an appeal o f an administrative DES decision, “our

because they failed to raise these issues before the appeal tribunal. waived their claims regarding the unconstitutionality of RSA 282 - A:14, III, appe llate board may have clarified or limited the record; and (2) the petitioners of the appeal tribunal and not the appellate board, except insofar as the DES counters that: (1) RSA 282 - A:67 limits our review to determinations

authority to determine the constitutionality of RSA 282 - A:14, III. State Constitutions; and ( p. 3 3) RSA 282 - A:65 e xpressly grants the appellate board RSA 282 - A:14, III violates the Equal Protection Clause of both the Federal and violates the Due Process Clause of both the Federal and State Constitutions; (2) of weeks of longevity pay rec eived from Pike. They argue: (1) RSA 282 - A:14, III their 2002 unemployment benefits for a period commensurate with the number The petitioners now appeal the appellate board’s final orders denying

appellate board denied. A:65.” The petitione rs then filed a motion for reconsideration, which the reversal of the Appeals Tribunal’s decision but for the limitations of RSA 282 with the concerns for vagueness . . . would most certainly result in the Board’s those respective years.” The appellate board concluded: “This treatment, along and 200 p. 3 3 and the opposite outcomes relative to eligibility for benefits in each of application of RSA 282 - A:14 III between the receipt of longevity pay for 2002 reasonableness”; and (2) “the disparate treatment of the Appellant in the statute’s failure to provide any criteria relative to the meaning of noted concerns regarding: (1) “the vagueness of RSA 282 - A:14 III and the The appellate board sustained the appeal tribunal’s determination, but

to the weeks immedi ately following Pike’s seasonal employees’ layoffs. application of the 2002 longevity pay, DES did not apply the 200 p. 3 3 longevity pay p. 4 4

the underlying statutes and regulations or the alleged denial of its appeale d. Id. On appeal, we declined to address either the constitutionality of Corp., 152 N.H. at 22 p. 4 4 - 25. The superior court affirmed, and the employer constitutional right to a jury trial during the DOL hearing process. SNCR argued on appeal to the superior court that it had been deprived of its Department of Labor (DOL) wage claim decision. In that case, the employer Greene, 152 N.H. 223 (2005), a case involving the appeal of a New Hampshire Our conclusion comports with our recent decision in SNCR Corp. v.

not preserved for our review. raising constitutional claims. Thus, we conclu de the constitutional issues were before the appeal tribunal did not constitute sufficient notice that they were generalized assertions of unreasonableness that the petitioners did make tribunal was denied a n opportunity to address those issues. Furthermore, the raised in their appeal to the appellate board. Consequently, the appeal neither articulated nor implicated the constitutional claims they subsequently to internal DES guidelines governing bonuses. The petitioners’ arguments when it was applied; and (2) the certifying officer’s determination was contrary between the weeks in which the longevity pay bonus was earned or paid and unreasonable, the petitioners argued that: (1) there was no relationship general assertion that the certifying officer’s denial was arbitrary and determination. In their appeal to the appeal tribunal, and to support their constitutional claims until after the appeal tribunal had reached a final Simil ar to Bosselait, the petitioners in this case failed to raise their

constitutional issue.” Bosselait, 130 N.H. at 607. sufficient to put anyone on notice that [the employee] thereby meant to raise a relevant statutory provision “was discriminatory against the aged” was “not 607. We also noted that one employee’s remark to the appeal tribunal that the insufficient to preserve them for consideration on appeal to this court. Id. at the equal protection questions in their appeal to the appellate board was the employees’ cla ims were not timely raised, we recognized that merely listing tribunal’s decision to the appellate board. Id. at 605 - 06. In concluding that reopen the appeal tribunal’s decision, and again in their appeal of the appeal b efore the appeal tribunal; instead, they first raised them in their request to Act. Id. at 605, 606. However, the employees failed to raise these claims State equal protection standard and conflicted with the federal Rehabilitation that a portion of a statute, which the appeal tribunal relied upon, violated the appealed an appeal tribunal’s denial of unemployment compe nsation, asserting Bosselait is squarely on point. In Bosselait, two part - time employees

issue for appeal.” Id. sufficient to justify a demand to introduce relevant evidence and preserve an a factual record supporting his theory of relief, or to make an offer of proof claim is raised in the trial forum, there is no opportunity for a party to develop p. 5 5

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

III. determination, and decline to address the constitutionality of RSA 282 - A:14, Accordingly, for the foregoing reasons, we affirm the appeal tribunal’s

A:14, III, are insufficient to bring this issue within our jurisdiction. regarding potential issues surrounding the statutory language of RSA 282 tribunal’s record or determination. The appellate board’s observations this instance, the appellate board neither clarified nor limited the appeal appellate board. See RSA 282 - A:67, V(a) (1999); Bosselait, 130 N.H. at 606. In the appeal tribunal’s record may have been clarified or the issues limited by the reviewing the record of the appeal tribun al for errors of law, except insofar as constitutionality of RSA 282 - A:14, III. Our jurisdiction, however, is limited to appellate board authority to make determinations regarding the The petitioners also argue that RSA 282 - A:6 p. 5 5, I, expressly grants the

address any alleged constitutional violations. RSA 282 - A:14, III before the appeal tribunal deprived it of the opportunity to hearing. Id. Similarly, the petitioners’ failure to raise the constitutionality of claims for our review because it fa iled to raise them at the administrative constitutional rights, concluding that the employer failed to preserve these