Aspen Skiing Co., Mulcahy end bitter feud – for now
ASPEN – Aspen Skiing Co. and former ski instructor Lee Mulcahy have reached an agreement to end their long, bitter labor dispute.
Both parties signed a proposed settlement agreement arranged by the National Labor Relations Board on a handful of outstanding issues in the fight, which started in November. Skico signed the agreement in April; Mulcahy signed it Tuesday.
“The proposed settlement agreement is before the regional director” for review, said Kelly Selvidge, assistant director in the NLRB’s Denver office. A decision could come as soon as Friday, she said.
The settlement agreement wasn’t acted on sooner because a decision was required in an appeal made by Mulcahy on earlier rulings by the NLRB. Mulcahy failed to win his job back or convince the NLRB that he was wrongfully terminated by Skico in retaliation for complaints about company practices. However, Mulcahy said the proposed settlement agreement is significant because it accomplishes one of his major goals – to “protect freedom of expression” for all Skico employees.
Jim Laing, Skico vice president for human resources, said the settlement agreement is narrow in scope and only pertains to minor issues. Roughly 95 percent of the labor dispute centered on whether Mulcahy was unlawfully terminated, Laing said. The proposed settlement agreement addresses 5 percent of the issues. He claimed the issues weren’t even raised by Mulcahy. The NLRB asked the Skico to address the minor issues when it looked into – and dismissed – Mulcahy’s allegations, Laing said.
The proposed settlement will require the Skico to provide a notice to all employees from last season that federal law gives them the right to form, join or assist a union.
The notice then recites five actions it will not take and five related actions it will take. For example, the Skico must strike a sentence in its employee handbook on conflicts of interest. That sentence now reads, “If an employee is found to be making public statements that are either damaging and/or untrue, that employee may be disciplined up to and including termination.”
In a similar finding, the NLRB will require Skico to rescind an overly broad rule that prohibits instructors in the elite Diamond Pro group from communicating with each other on personal email accounts about wages, benefits, work conditions and unions.
Mulcahy hailed those findings as a victory. “People can talk about wages. They can talk about job conditions and not get fired,” he said.
Laing said Skico employees have always had the ability to raise issues openly without fear of retaliation. He said the NLRB isn’t dismantling its conflict of interest policy, it’s simply stating the policy is “too broad.”
“We just need to modify one sentence,” he said. The correction might be as simple as eliminating the sentence that caught the labor board’s attention.
Laing also said Skico has no problem with Diamond Pro employees communicating with one another. There were just restrictions on use of business email accounts for personal reasons, he said.
Another finding in the notice requires Skico to provide back pay to Mulcahy for lessons he taught after he was removed from the Diamond Pro team but before he was suspended and ultimately fired. The pay comes out to $121.11, plus interest. Laing said the amount reflects the slightly higher rates that Diamond Pros receive for instruction.
“One hundred twenty-two dollars – we’re going to pay him,” Laing said. “One modification of a sentence [in the conflict of interest policy]. I can do both of those in five minutes.”
A third issue raised in the proposed settlement bars Skico from placing management representatives in boards that work on various issues in the ski school – benefits, training, safety – as well as the pro council, a committee that reviews appeals by ski instructors on disciplinary actions, among other things.
The notice says Skico “will not dominate, assist, or otherwise support” the advisory boards. Mulcahy said the pro council can work effectively to address ski instructor issues, as long as it’s not influenced by the Skico management.
“Any time you get on the bad side of management, watch out,” he said.
Laing said Skico will consult with its labor attorneys on possible changes to the board structure and seek input from its employees. The company remains committed to a collaborative process that has made its ski school one of the best in the country, he said.
“There’s no big, broad sweeping change here,” Laing said.
Mulcahy started teaching skiing for the Skico in the 1997-98 season and soon became one of its top instructors. The relationship went sour, and public, in May 2010. Mulcahy wrote a letter to the Aspen newspapers criticizing Skico for firing a musician for singing a song that one of its executives found inappropriate. The musician was later invited back.
In August, Mulcahy made public complaints about the pay scale for starting Skico ski instructors as well as other entry-level employees. He claimed he was demoted that month after he started discussing the possibility of forming a union for ski instructors.
Mulcahy filed two charges with the NLRB in October, one contending Skico took retaliatory actions for his outspokenness and the other complaining about the ski school management structure.
In December, Mulcahy distributed fliers critical of Skico and its owners, the Crown family. He handed out materials at The Little Nell hotel and other Skico properties during the busiest week of ski season.
Mulcahy was suspended, then fired on Jan. 31.
If the proposed settlement agreement is approved by the NLRB regional director, as recommended by an attorney for the agency, both sides will have a victory of sorts. The agreement requires Skico to remove any records of Mulcahy’s removal from the Diamond Pros club.
Likewise, Skico does not admit in any way that it violated the National Labor Relations Act by signing the agreement.
The bottom line for Skico, Laing said, is that the NLRB dismissed Mulcahy’s claim that he was wrongfully terminated in retaliation for criticizing the Skico. If there was evidence of that, “the government would have reached a different decision,” he said. Skico says Mulcahy was fired for a number of performance violations as a ski instructor over several years.
The bottom line for Mulcahy is that Skico employees might now have a clearer path to possible unionization, or at least an opportunity to discuss work conditions and seek a better deal.
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