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Ohlson v. General Drivers Local No. 120

Court of Appeals of Minnesota

July 15, 2013

Thomas Ohlson, Relator,
v.
General Drivers Local No. 120, Respondent, Department of Employment and Economic Development, Respondent.

UNPUBLISHED OPINION

Department of Employment and Economic Development File No. 29771792-3

Thomas E. Ohlson, Scandia, Minnesota (pro se relator) Martin J. Costello, Hughes & Costello, St. Paul, Minnesota (for respondent employer)

Colleen Timmer, Lee B. Nelson, Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Kalitowski, Presiding Judge; Hooten, Judge; and Klaphake, Judge. [*]

HOOTEN, Judge

Relator challenges the decision of an unemployment law judge (ULJ) that he has not actively sought suitable employment. Relator argues that the ULJ erroneously relied on his failure to accept an available position and his failure to seek employment outside of his previous occupation. Because the ULJ based the underlying factual findings on substantial evidence and did not err in applying the law, we affirm.

FACTS

Relator Thomas Ohlson worked as a truck driver and dock worker for Roadway Express, which became Yellow Road Corporation (YRC), until November 1995, when he was elected as a business agent for General Drivers Local No. 120 (the union). As a business agent, relator was responsible for negotiating contracts, processing grievances, handling arbitrations, and helping members of the union with labor issues. Relator's pay with the union was based on what he would have earned as a driver for YRC, so he was paid $24.56 per hour for 40 hours per week, was guaranteed 20 hours of overtime at time-and-a-half per week, and was given about $225 per week for transportation because he used his personal vehicle for work-related travel. This resulted in total annual compensation of about $114, 000 in wages and benefits. Relator was also entitled to a pension that would be available at age 57. Pursuant to the contract governing relator's employment with YRC, and under which he was elected to the business agent position, his seniority was retained during his time as a business agent and he was guaranteed to be able to return to his prior position at YRC if he ever ceased to be a business agent.

In December 2011, relator lost an election for the business agent position, and his employment with the union was thus terminated contemporaneously. Relator exercised his option to return to a truck driving position with YRC, in which relator would earn the same pay per hour as at the union and would receive several other benefits. However, he would not be guaranteed overtime, would not receive a travel allowance, and would not be eligible for a pension until 65 rather than 57.

But despite exercising his option to return to YRC, relator did not return to work for medical reasons, described by his doctor as "[s]ituational stress, depression and anxiety, " and he submitted letters from a doctor to YRC on January 5, February 22, and April 3, 2012 indicating that he was unable to work. As a result, relator's position with YRC was held open and he retained seniority. Relator's doctor indicated that relator's inability to return to work ended as of May 1, 2012, but relator had not returned to YRC as of the hearing on August 7, 2012. Relator testified that he has not returned to YRC because it is not suitable employment for him.[1]

Relator was initially determined to be eligible for unemployment benefits as of May 6, 2012, but the union appealed this determination, and a telephonic hearing was held before a ULJ to determine whether relator was actively seeking suitable employment. Relator testified that he was actively seeking employment, by "looking for other Teamster locals[, ] . . . other international unions[, and] . . . other trades." Relator testified that "[a]ll local unions within the Teamsters have business agents" and "other international unions . . . have hired business agents as well." Relator also testified that the union he worked for was "unique" in using elections to fill business agent positions because "[m]ost of the other locals are appointed, so they're hired from the outside." Relator noted that he knew of "one [person] in particular that was hired from the outside from another Teamster local."

Relator testified that he has "made some contacts with some of these different locals, talking to them on a personal basis, and also making phone calls and trying to see who's going to maybe do some hiring and who isn't." At the union organizations relator contacted, "some of the people . . . said that they weren't hiring at this time, but there's some that had said that they'd like me to get back to them, they look like there might be some hiring or posturing maybe to do some hiring in the very near future, " so relator was told "to keep in contact with them on a regular basis." Relator also submitted a copy of his resume, letter of interest, and a list of 15 union organizations that received his resume and cover letter in June and July. Relator testified that this list included all Teamsters locals in Minnesota, with the exception of the union he worked for prior to losing the election for business agent.

Relator testified that he had not applied to any "employer organizations, " had not attempted to find work in the trucking industry or outside the labor relations or business agent areas, and had not searched for work with private companies, though he believed he could work for a non-union company dealing with contracts. In addition to talking to unions, relator testified that he used a union-focused website to search for union jobs. Relator testified that there were "a few" local unions that he had not yet contacted, and "intended to get a hold of every . . . local in the state of Minnesota, " though he started with the Teamsters unions. ...


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