The Alberta Labour Relations Board (ALRB) has dismissed a duty of fair representation complaint against a union that withdrew a termination grievance after conducting its own investigation when the employer refused to share its full investigation report in a sexual harassment case.
In dismissing the complaint brought by D.A. against the International Union of Operating Engineers Local Union No. 955, the board found the union had met its obligations despite working with limited information after the employer cited confidentiality concerns.
The case highlights the balancing act unions face when employers withhold investigation materials gathered in confidence, particularly in sensitive workplace harassment matters.
Termination and initial grievance
D.A. worked for Simmons Canada Inc. for over eight years before being terminated for just cause in January 2023. According to the employer’s termination letter, D.A. was dismissed “for inappropriate and harassing conduct towards employees” including making “sexual comments, solicited sexual favours and made inappropriate contact and advances towards other employees.”
The union filed a grievance alleging unjust termination and requested a copy of the employer’s investigation report and D.A.’s discipline file. While the employer provided the discipline file, it declined to share its investigation report, stating the materials had been gathered in confidence.
After multiple requests for disclosure, the employer provided a summary of the misconduct, copies of relevant policies, and eventually shared the names of three workers who had accused D.A. of misconduct.
Union’s investigation process
With this limited information, the union’s business agent conducted an investigation, interviewing two of the three workers and the complainant. The resulting six-page investigation report reviewed the allegations, undisputed facts, parties involved, and positions of both D.A. and the employer.
The business agent concluded: “After conducting a thorough investigation and reviewing the statements and interviews of the parties involved the information that was presented through the interviews were consistent and no ulterior motive was identified.”
Based on these findings, the union recommended withdrawing the grievance rather than proceeding to arbitration.
When D.A. appealed this decision through the union’s internal appeal process, the Grievance Appeal Committee (GAC) upheld the decision to withdraw the grievance, providing a ten-page response explaining its reasoning.
Board’s assessment
The ALRB found no reasonable prospect of success for D.A.’s complaint and dismissed it summarily. The board noted that a union need not take every grievance to arbitration just because a grievor requests it, and is “entitled to assess the merits of the grievance, the chances of success at arbitration, the costs of the arbitration process and other factors when deciding whether or not to advance a grievance to arbitration.”
Central to the board’s decision was the fact that the union had a board-approved internal appeal process under section 153(6) of the Labour Relations Code. The board cited its previous ruling in Moench v International Union of Operating Engineers, which established that “proceeding through a board-approved appeal process will, in the vast majority of cases, answer any duty of fair representation concerns.”
The board also rejected D.A.’s argument that the GAC was biased by allegedly disregarding evidence from a text exchange with a potential witness. The decision noted the GAC had explicitly addressed this evidence, stating: “This passage demonstrates the Union explicitly turned its mind to the information from the text in its evaluation of the grievance and its consideration of next steps.”
Balancing confidentiality and disclosure
The board addressed the inherent tension in workplace harassment investigations between disclosure and confidentiality. It quoted the GAC’s acknowledgment that “in cases of workplace harassment and violence investigations, it can be difficult to balance the rights of the respondent (to know the case against them) with the concerns of the complainants (confidentiality and potential retaliations).”
The GAC had referenced Alberta’s Occupational Health and Safety Code provisions that limit disclosure of harassment investigation details except where necessary to investigate, take corrective action, or as required by law.
The board concluded that the union had taken appropriate steps to gather relevant information despite the employer’s reluctance to disclose its full investigation report, finding “no arguable case for arbitrariness here.”
For more information, see Adjei v International Union of Operating Engineers, Local Union No. 955, 2025 ALRB 43 (CanLII).
