Dismissal of NHL Ref Not an Unfair Labour Practice

I noted a case before the labour board a while back that involved allegation by an NHL referee, Dean Warren, that he had been dismissed by the NHL for union activity.  The Board issued its decision recently, ruling that the referee was dismissed for reasons unrelated to his activities with the referees’ union.  Here is the decision.
The first 171 paragraphs of the decision are recital of the facts and arguments.   Then the Board turns to the analysis.  My students will recognize the key sections of the Labour Relations Act at play in a case like this as Section 70 and 72.  They say, in essence, that an employer cannot threaten or impose discipline or dismissal on an employee because that employee has been active in lawful union activities.  Therefore, the sole issue before the Labour Board was whether the referee’s dismissal was influenced in any way by the employee’s union activity.  The Board does not consider whether the employer had “cause” to dismiss the referee.  The “reverse onus” section of the Act (section 96(5)) applies here, so the NHL had to prove that its reason for dismissal were completely unrelated to union activity.
The referee argued that the dismissal was related to his appointment to the officials’ union executive board as Vice President and his activities while in that position, particularly his aggressive advocacy on behalf of veteran refs.  Interestingly, Warren had obtained his NHL ref job after filing a complaint with the Human Rights Tribunal alleging that the NHL had refused him employment on the basis of his age (he was in his mid 30s when he started, which might be considered “old” to begin a pro refereeing career) .  The Labour Board rejects that argument, and finds that the dismissal was “work-related”.
The media this week is focusing on a series of emails sent by NHL officials describing Warren’s skill set. [Here is ESPN’s article].  The emails are profane and nasty, but do not mention his union activity.  The Board believes that the NHL just thought Warren was not a very strong referee.  Plus, the NHL decided it wanted to “remove some of the veteran referees to make room for new officials”, and that Warren was caught on the wrong end of that strategy.
As a result, the Board found that, “whether it was ‘fair or not'” the decision was not tainted by antiunion animus.  This is key.  The Board is not saying that the NHL acted “fairly” or that it agrees with how the NHL went about dismissing Warren, or even that it agreed with the decision to dismiss him.  All the Board has jurisdiction to ask is whether the dismissal was based in some part on the fact that Warren had been a union advocate.  The Board found no evidence of this, so Warren loses the case.