This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Amborn, et al.,
ANR Advance Transportation Co., Inc.,
Commissioner of Economic Security,
Department of Economic Security
File No. 166999
Martin J. Costello, Hughes & Costello, 1230 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102-1216 (for relators)
Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.
Relators Joseph Amborn and others challenge the decision that they were disqualified from reemployment benefits, claiming that the employer unilaterally imposed terms so unreasonable that a constructive lockout occurred. Relators also challenge the decision that their strike ended the week of February 8, 1999, claiming instead that the strike ended on December 18, 1998. There being adequate evidence to support the findings of the commissioner’s representative, we affirm.
Relators were Minnesota employees of respondent ANR Advance Transportation Company, Inc. and were represented by the Teamsters National Freight Industry Negotiating Committee in negotiations with ANR for a new labor contract. The negotiating committee and ANR were unable to reach an agreement, and ANR notified the committee that it would implement its final offer on December 7, 1998.
Relators, members of Teamsters Locals 120 and 160, commenced a strike against ANR at its Minnesota facilities on December 8, 1998. Ten days later, relators stopped picketing at ANR’s Minnesota facilities because of their belief that ANR had ceased operations in Minnesota as a result of the work stoppage. On that date, representatives of Locals 120 and 160 also spoke with a dispatcher at ANR’s St. Paul location and left a message with this dispatcher that relators would be willing to return to work.
On February 8, 1999, the negotiating committee sent a letter to ANR’s vice president of labor relations, stating that the committee considered the strike to have been over since December 18, 1998, and that the employees represented by the committee “make an unconditional offer to return to work.”
The commissioner’s representative, affirming decisions by the department and a reemployment judge, determined that relators left their employment with ANR as a result of a strike or labor dispute, not a constructive lockout, and were disqualified from benefits for the period from December 8, 1998, through the end of the week of February 8, 1999.
This court is to view the commissioner’s fact-findings in the light most favorable to the decision, and “if there is evidence reasonably tending to sustain” those findings, they will not be disturbed on appeal. Ress v. Abbott Northwestern Hosp., 448 N.W.2d 519, 523 (Minn. 1989) (citation omitted). This court exercises de novo review of the commissioner’s conclusions of law. Id.
Under Minnesota law, employees who leave their employment due to a strike or labor dispute are not entitled to reemployment insurance benefits. Minn. Stat. § 268.095, subd. 12(a) (1998). Even if the employees have gone on strike, they are not disqualified from receiving benefits if they are unemployed because of a lockout. Minn. Stat. § 268.095, subd. 12(c)(2) (1998).
For reemployment compensation purposes, a lockout is defined in the Minnesota Labor Relations Act. Moore v. Allied Aviation Fueling Co. of Minnesota, Inc., 385 N.W.2d 41, 44 (Minn. App. 1986). This act defines a lockout as “the refusal of the employer to furnish work to employees as a result of a labor dispute.” Minn. Stat. § 179.01, subd. 9 (1998). A constructive lockout may occur where an employer unilaterally imposes employment terms so unreasonable that the employees have no alternative but to leave. Sunstar Foods, Inc. v. Uhlendorf, 310 N.W.2d 80, 83 (Minn. 1981). Whether such a lockout has occurred is a question of fact to be determined by the commissioner on all the facts developed at the hearing. Id.
Relators characterize the terms imposed by ANR’s final offer as so unreasonable that they had no alternative but to leave in December 1998. But the evidence in the case reasonably sustains findings of fact made by the commissioner’s representative. ANR’s final offer imposed a wage freeze, not a wage decrease. Although vacation pay and health and welfare benefits were changed, these changes were not so substantial as to constitute a lockout. See id. at 83-84 (generally a wage decrease must be in the range of 20-25% to represent such an unreasonable change so as to constitute a lockout). Furthermore, some of these changes were at least partially offset by the inclusion of small yearly bonuses in ANR’s final offer.
Relators assert that the changes in calculating overtime, whereby this benefit would be paid considering the hours worked in a week rather than on a single day, were so unreasonable as to constitute a lockout. Relators argue that the overtime change eliminates 27% of their compensation. But even where employees have regularly worked overtime hours, if overtime was not promised in the original contract, the overtime is not a term of the employment agreement. See Moore, 385 N.W.2d at 46. Relator’s evident assumption that overtime was guaranteed in the original contract is not detailed and not demonstrated by the record. The altered overtime calculation does not represent such an unreasonable change so as to constitute a lockout.
2. Strike end date
Relators also assert that the commissioner’s representative erred in concluding that the strike did not end until February 8, 1999. But throughout this dispute, relators were represented by a negotiating committee in bargaining with ANR, and the committee did not act to end the strike before February 8, when it sent notice to ANR that picketing had stopped and relators were willing to return to work. In addition, the representatives of the locals did not contact ANR management in December but left a message with a St. Paul dispatcher. The December 18, 1998 contact between a local representative and ANR’s dispatcher was not sufficient to indicate an end of the strike. See Geo. A. Hormel & Co. v. Asper, 428 N.W.2d 47, 52-53 (Minn. 1988) (individual’s offer to return to work does not lift the strike disqualification when the strike itself was ongoing).