A settlement agreement has been reached between the National Labor Relations Board and the Aspen Skiing Co. regarding the management of its ski school program and the nuances of how policies for employees are conveyed.
A notice to SkiCo employees with the agreed-upon changes will have to be posted for 60 days, as well distributed via email. And while the language in the document appears to be damning, the company’s vice president of human resources said what’s stated in it are minor administrative revisions.
“It’s semantics,” said Jim Laing, SkiCo’s vice president of human resources. “If you understand the actions we have to take, they are minor.”
The NLRB’s regional director has not yet signed off on the settlement but both parties mostly agree on the terms, Laing said.
Perhaps the most significant change that has yet to occur is how the SkiCo will tweak its approach to its advisory boards, pro council and other organized committees that handle employee matters, including wages and benefits.
The NLRB interprets those entities to be management driven and dominated, but Laing said they are comprised of employees and led by team leaders who are professional ski instructors. Management only attends those entities’ meetings, and does not participate or give direction.
Laing said he is unsure how the structure will be changed, and is seeking clarification and guidance from both the NLRB and outside consultants.
“We’re going to have to revise these committees,” he said. “It doesn’t say we can’t have employee committees but the NLRB thinks it’s management driven. There is no omission of guilt. ...
“We are completely committed to a collaborative management effort,” Laing added. “The company doesn’t call the [advisory committee] meetings even today.”
The pending changes have arisen from complaints filed by former ski instructor Lee Mulcahy, who has had a long and bitter public battle with the SkiCo over the past year.
The NLRB sided with the SkiCo last month, finding the company did not wrongfully terminate Mulcahy in January. Mulcahy, who was part of an elite group of ski instructors called the “Diamond Pros,” has been on a crusade to unionize the ski schools and get more pay for beginning instructors who get $69 a day for a full private lesson, which costs $625.
Another aspect of the settlement that is included in the notice to employees is that SkiCo will not “maintain an overly broad rule prohibiting Diamond Pro employees from communicating with each other through their personal email accounts about wages, benefits, or other terms and conditions of employment, or unions.”
What that speaks to specifically and is in response to is an email exchange Mulcahy had with his Diamond Pro colleagues last August in which he attempted to rally other employees to increase wages, benefits and begin a unionization effort.
His colleagues responded via email, requesting that Mulcahy use a different venue to air his grievances and thoughts on unionization, Laing said.
The notice simply clarifies that employees are allowed to discuss wages and benefits via email and the SkiCo doesn’t forbid it.
“We will not remove employees from the Diamond Pros, or otherwise discriminate against any employee, for sending email communications to other Diamond Pro employees concerning wages, benefits, or other terms and conditions of employment, or unions,” the notice reads.
And while Mulcahy claims the email to other Diamond Pros led to his firing, Laing said it was because of his past transgressions dating back to 2006 that led to his termination, including the ski instructor’s Dec. 30 distribution of fliers bad-mouthing the SkiCo on company-owned property. Mulcahy was placed on paid suspension for a week and then three weeks without pay before getting fired.
It was Mulcahy’s Diamond Pro colleagues who made the majority decision to have him removed from the elite group of instructors, but not because of his attempts for wage increases or the forming of an union, Laing said.
Regardless, the NLRB settlement also stipulates that the SkiCo pay Mulcahy $121.11 in lost earnings when he was demoted from the Diamond Pros, who earn more than other instructors.
The other significant, yet minor change, according to Laing, is that the SkiCo has to change one sentence in its 60-page employee resource guide so its conflict of interest policy is more specific. The NLRB believes it’s too broad and could be interpreted that employees aren’t allowed to discuss wages and benefits.
The sentence in the employee handbook states “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.”
That sentence will be rewritten so it reads that wages, benefits and other terms of employment are not part of that policy.
The notice also affirms that the SkiCo acknowledges employees have the right to free speech when it comes to wages and benefits.
Despite that Mulcahy lost his wrongful termination fight with the SkiCo, his Denver-based attorney, Mike Belo, said the settlement shows the NLRB rightfully is making the SkiCo change the way it does business.
It’s significant “certainly in the sense of having to disestablish or eliminate these committees,” he said. “The NLRB’s concern is that these committees act like a union but are dominated by the company and management.”
The notice to employees does acknowledge that SkiCo management will “immediately disestablish and cease giving any assistance or support” to the advisory committees.
“I think that even though we are disappointed about the NLRB’s decision about Lee’s termination, this is vindication for the rights of all the employees of the Aspen Skiing Co., which was his motivation all along,” Belo said.