Labor board backs Aspen Skiing Co. in Mulcahy firing | AspenTimes.com
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Labor board backs Aspen Skiing Co. in Mulcahy firing

Lee Mulcahy
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ASPEN – The Denver office of the National Labor Relations Board (NLRB) concluded this week that the Aspen Skiing Co. did not wrongfully fire outspoken ski instructor Lee Mulcahy one month after he handed out fliers on company property bad-mouthing his employers.

Mulcahy’s attorney said he will appeal the decision. Had Mulcahy prevailed with his charge that he was wrongfully fired, the NLRB had the authority to make Skico re-instate him with back pay.

Mulcahy did score two minor victories, however.



The NLRB agreed with his charge that the company took retaliatory action against him in August – when it removed him from the Diamond Club ski teacher group – for e-mailing his concerns to fellow workers about pay for beginning instructors and unionizing. The NLRB also agreed with Mulcahy’s claim that ski-school management structure is potentially unlawful and designed to prevent establishing union representation.

Skico can either address the regional director’s conclusions that it potentially violated two labor laws, or challenge the decision in a hearing before an administrative law judge.




“Aspen Skiing Company is working with the [NLRB] Region toward the resolution of their concerns. Similarly, the company is working with the NLRB Region to resolve potential concerns about the scope of ASC’s policy regarding the use of company email accounts,” a statement from Skico said.

Mulcahy called the NLRB’s three-pronged decision “great news and disappointing news,” while Skico said it “is pleased that the NLRB Region has determined that it acted lawfully and appropriately in the decision to discharge Mr. Mulcahy, and in its efforts to protect guests and visitors.”

The NLRB’s Denver office would not release any information about the decision Thursday. Its findings were confirmed by both Skico and Denver lawyer Michael Belo, who represents Mulcahy. The Skico, however, said it had not yet received written notification of the decision.

The NLRB’s decision marks a pivotal development in Mulcahy’s feud with the Skico, punctuated by his gripes about low pay for rookie ski instructors and the company’s alleged restrictions on his free speech.

The Skico had defended its practices and pay policies, maintaining that Mulcahy was a malcontent among a roster full of satisfied employees.

The last straw for Skico came when Mulcahy slipped fliers under doors of guest rooms at The Little Nell hotel and distributed them in the hotel’s dining room Dec. 30. He also handed out fliers in the Silver Queen Gondola Plaza to skiers and riders during what was one of the busiest days of the ski season. The fliers criticized the Crown family, owners of Skico, for allegedly not paying a living wage at the company despite making so much money off the private lessons.

Mulcahy was suspended with pay for about one week, then suspended without pay for about three weeks. He was fired Jan. 31.

After his termination, Skico CEO Mike Kaplan said Mulcahy had a lengthy history of bad-mouthing the company while in uniform and on the job.

In early February, shortly after the ski instructor’s termination, The Aspen Times published two letters Kaplan wrote explaining why Mulcahy was fired. Kaplan’s letters offered a detailed explanation of Skico’s decision, saying that Mulcahy had a history of on-the-job transgressions dating back to 2006.

Skico’s statement said the NLRB found that Kaplan “acted lawfully when he challenged misleading statements made by Mr. Mulcahy to the media.”

The NLRB determined that Skico policy forbids employees from solicitation on company property or while they’re in uniform, meaning the company did not squelch Mulcahy’s right to free speech when it fired him.

Belo, Mulcahy’s attorney, said he disagrees with the NLRB office’s finding that Skico did not violate labor law when it filed Mulcahy.

“They [Skico] claim that he that violated their no-solicitation and no-distribution rule and a no-solicitation rule can prohibit him from distributing literature in what they call a working area,” Belo said. “They [Skico] have a rule in the books which he didn’t even know about and they applied that rule and said the distribution of the fliers violated that rule.”

Belo, however, said Skico has allowed other employees to distribute fliers and paraphernalia without any repercussions.

“To our knowledge they’ve never applied the no-distribution rule to anyone, let alone fired anyone,” he said, saying Skico retaliated by firing Mulcahy because of his public dissatisfaction with Skico, which had been highlighted by a string of letters to the local newspapers in the months leading up to his termination.

rcarroll@aspentimes.com


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