FPSLREB Decisions

I. Application before the Board

1 The Treasury Board (for the Correctional Service of Canada) (“the employer”) applied under subsection 59(1) of the Public Service Labour Relations Act (PSLRA) to have the position of Security Intelligence Officer (SIO), occupied by Roger Cossette (“the respondent”) at the Regional Psychiatric Centre (RPC) in Saskatoon, Saskatchewan, excluded from the relevant Program & Administrative Services Bargaining Unit.

2 Subsection 59(1) of the PSLRA reads as follows:

59. (1) After being notified of an application for certification made in accordance with this Part, the employer may apply to the Board for an order declaring that any position of an employee in the proposed bargaining unit is a managerial or confidential position on the grounds that

(a) the position is confidential to the Governor General, a Minister of the Crown, a judge of the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, or a deputy head;

(b) the position is classified by the employer as being in the executive group, by whatever name called;

(c) the occupant of the position provides advice on labour relations, staffing or classification;

(d) the occupant of the position has substantial duties and responsibilities in the formulation and determination of any policy or program of the Government of Canada;

(e) the occupant of the position has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with grievances presented in accordance with the grievance process provided for under Part 2;

(f) the occupant of the position is directly involved in the process of collective bargaining on behalf of the employer;

(g) the occupant of the position has duties and responsibilities not otherwise described in this subsection and should not be included in a bargaining unit for reasons of conflict of interest or by reason of the person’s duties and responsibilities to the employer; or

(h) the occupant of the position has, in relation to labour relations matters, duties and responsibilities confidential to the occupant of a position described in paragraph (b), (c), (d) or (f).

3 The applicant based its application on paragraph 59(1)(g) of the PSLRA. It argued that the position’s duties create a potential conflict of interest and that the nature of an SIO’s duties and responsibilities are incompatible with membership in the bargaining unit.

II. Summaries for the applicant

A. Applicant’s evidence

4 The applicant’s first witness was Tim van der Hoek. He has held a number of administrative positions and has SIO experience. When Mr. van der Hoek was in an administrative position at the regional level, the position of Institutional Preventive Security Officer (IPSO) was being eliminated and replaced with the SIO position as it now exists. His responsibility was to write a coherent definition of the SIO position and to ensure that the responsibilities associated with it were uniformly understood across the region. He was expected to create standards and a program suitable for 14 institutions and 2 parole districts spread across a wide geographic area of western Canada and the Northwest Territories. The institutions ranged from minimum to maximum security and included special-purpose institutions, such as healing lodges. He was involved in developing a two-week intensive training program for the SIOs that combined classroom study with role-playing to expose the students to a wide range of scenarios.

5 Mr. van der Hoek described the SIOs as the “eyes and ears” of an institution’s senior management and said that their role is crucial to decision making, particularly for wardens and deputy wardens. The SIO’s job is to turn information into an intelligence product that can be used as a basis for sound decisions. An SIO’s mandate is to assess risks to the security and safety of people and property in an institution, as well as of the public at large, and to participate in deciding how those risks should be mitigated. Unlike the work of the old IPSO position, which was focused on reacting to security threats, the emphasis for an SIO is on identifying risks early and preventing their realization. The SIO also manages crime scenes, secures and manages evidence, and carries out security clearances for staff and visitors.

6 Mr. van der Hoek said that an SIO uses a five-step process to produce useful intelligence, which involves collecting information, evaluating its reliability and significance, collating it, analyzing it, and reporting and disseminating it.

7 That process begins with gathering information, which may come in many forms. An SIO receives Officer Statement Observation Reports (OSORs), which correctional officers are required to complete if an incident with security implications occurs. Examples of reported incidents include fights between inmates, the discovery of contraband or verbal threats. An SIO also receives information from the network of informants in the correctional system, from authorized interceptions of telephone calls or written communications, from the SIOs or other staff in other institutions, from databases, or from partner agencies, such as the police. Mr. van der Hoek stressed that an SIO receives daily a high volume of information. In his 10 years as an SIO, he said that he typically received 30 to 40 OSORs in a day and 4 or 5 calls from the SIOs elsewhere in the country, along with reports from intercepted communications and material from informants.

8 Following the other steps in the process, the SIO’s work is to shape the mass of raw information into useable intelligence. That involves assessing the information and then deciding whether it is reliable and likely to be accurate. It must be sorted and analyzed. The SIO must decide whether it reveals specific risks and the level of seriousness to attach to those risks. The SIO must also shape the information into intelligence reports that can be used by those charged with making decisions in the institution. At every stage, the SIO decides that some information should be pursued and that some should be discarded, which represents a sophisticated exercise of judgment. The risks of making a faulty judgment are significant for everyone in the institution, and an error might result in injury, loss of life or serious property damage. In some instances, the SIO proactively investigates further or requests more information.

9 Mr. van der Hoek gave some examples of how an SIO might proceed with particular information. If a report is received of a fight between inmates, the SIO might investigate further to assess whether the fight might lead to broader risks of violence. When making that assessment, the SIO might consider the records of violence of the inmates involved, whether the inmates are associated with a “threat group” or gang, and how other inmates reacted to the fight. That kind of information is essential to decisions about “population management,” the process of determining where in an institution particular inmates will be housed and the conditions of their incarceration.

10 As Mr. van der Hoek testified, much of the information that comes to the SIO is sensitive, and confidentiality is an important consideration. Mr. van der Hoek said that the SIO is the guardian of the “need-to-know” principle and has to judge the circumstances under which intelligence should be shared and who should be privy to it.

11 Mr. van der Hoek was referred to the SIO position description (Exhibit E-2) and pointed out the following aspect of the duties outlined in it:

…

Develops action plans and strategies, based on strategic analysis of information and intelligence received from disparate sources such as offenders, staff, visitors and external justice partners, to prevent or mitigate threats to the safety and security of individuals, the institution or community office as well as the Canadian community.

12 Mr. van der Hoek said that that paragraph captures the SIO’s critical role in formulating plans and strategies grounded in information that has been analyzed and turned into intelligence. The SIO reports that intelligence to the relevant decision maker, usually the warden or deputy warden, and recommends appropriate action. No one in an institution can second-guess an SIO’s judgment, and the warden and deputy warden must be able to rely explicitly on the SIO’s recommendations when making their decisions.

13 Mr. van der Hoek described the morning briefings that he attended as an SIO. He testified that, typically, a large number of managers were present at the beginning. A general overview was made of the situation in the institution over the past 24 hours, including the gists of any incidents that created risks. Next, any managerial staff would leave that did not need to know more details of the incidents or risks. Those remaining would continue the discussion. Later on, more managers whose need to know had been satisfied would leave, and only the SIO, the warden and the deputy warden would remain to discuss any highly sensitive matters. Mr. van der Hoek acknowledged that the warden and the deputy warden were responsible for making the ultimate decisions. However, in these discussions, he said that “rank was left at the door,” and the SIO, the warden and deputy warden would have frank discussions about the SIO’s recommendations. The intelligence that the SIO provided as the basis for the recommendations would form a critical part of any decisions made by the warden and the deputy warden.

14 Mr. van der Hoek said that the SIO must exercise careful judgment when deciding what information should be disclosed at different stages and who should be privy to it. If information is disclosed prematurely or is distributed too widely, the safety or reputation of the institution could be put at risk.

15 The SIO position description (Exhibit E-2) indicates that, even though the SIO is expected to investigate suspicious circumstances, “[t]he incumbent is not involved in the investigation of staff members.” Asked for his interpretation of that sentence, Mr. van der Hoek replied that the SIO is not responsible for investigating employee conduct that could have disciplinary consequences; the SIO does not function as an internal affairs officer. Nonetheless, if a staff member is implicated in circumstances that come to the SIO’s attention that raise a security concern, the SIO must take into account the staff member’s involvement when assessing the situation.

16 Mr. van der Hoek gave as an example a report of the presence of contraband material, such as drugs, in an institution. If the SIO’s probing of the information brings to light a staff member’s possible involvement in facilitating the presence of the contraband, it would be impossible for the SIO to not consider that involvement when recommending the steps to take to deal with the risk. Although it would be up to the warden, the deputy warden or other managers to decide the employment consequences, the fact that a staff member was implicated would be an important part of the intelligence process. As another example, if a report is made of an inappropriate relationship between a staff member and an inmate, the SIO must determine whether the report is founded and must assess the risk. When reporting such activity by a staff member, the SIO might recommend restrictions on that staff member’s access to parts of the institution or to information or limitations on that staff member’s tasks, pending further investigation. Although someone other than the SIO carries out that investigation, the SIO must at least initially be able to comment on the significance of the staff member’s conduct in such situations.

17 According to the position description, the SIO is responsible for conducting security clearances for contractors and visitors. The initial security clearance for employees is conducted at the applicant’s headquarters in Ottawa. However, Mr. van der Hoek said, an SIO could be called on to review the security status of an employee if new information comes to light and could provide a report on whether the new information warrants changing that employee’s security status. Like the SIO’s preliminary involvement in investigations into staff members’ alleged implications in security-related situations, the SIO’s report about an employee’s security status could eventually impact employment, although that is not the SIO’s direct responsibility.

18 The intelligence that the SIOs gather and process could be used in tactical decisions at the local level or even at the level of a particular officer in an institution. The example offered by Mr. van der Hoek was that of decisions to separate inmates identified as members of particular groups. The intelligence could also be shared at a regional or national level to develop strategies to deal with cross-institutional issues about gangs or threat groups.

19 Mr. van der Hoek spoke to the question of whether an SIO’s membership in a bargaining unit could be a problem in the context of a labour dispute. He expressed his opinion that the tension that would arise for an SIO between the responsibility to gather and supply risk intelligence and the requirement that the SIO withdraw from the workplace during a labour dispute could be a source of disruption and therefore of heightened risk. Historically, one of the duties associated with the IPSO position was to monitor picket lines and to negotiate with bargaining agents to get essential staff into the institution. Even if that specific responsibility were eliminated, Mr. van der Hoek was of the view that an SIO would have a conflict of interest between the duty to support management with intelligence and the role as a member of a bargaining unit.

20 In cross-examination, it was put to Mr. van der Hoek that all correctional officers are designated as peace officers under the Corrections and Conditional Release Act, S.C. 1992, c. 20, and that all staff members have a responsibility to provide information about any event that could have safety or security implications at an institution. Mr. van der Hoek accepted those propositions but expressed his view that the SIO has a distinct and specialized role with respect to the peace officer role and the responsibility to report.

21 The applicant called Linda Garwood-Filbert, who had been the RPC’s deputy warden since February 2010. Ms. Garwood‑Filbert gained extensive experience in several corrections roles before coming to the RPC, including a term as a corrections advisor in Afghanistan. She described the deputy warden’s role as including the overall care and custody of inmates in an institution and as moving the public safety agenda of the government forward. She said that the specific character of the deputy warden’s duties might vary according to factors in the institutional context, such as levels of security, number of inmates and inmate profile, but that there are features common to the job, including access to the highest levels of information and intelligence and the status of second in command for the institution.

22 Ms. Garwood‑Filbert testified that the dual nature of the RPC, as both a correctional facility and an accredited hospital, gives it a distinct character. The RPC focuses on psychiatric treatment that will stabilize inmates and ensure that they can be reintegrated into their home institutions. The RPC must also address the physical issues that inmates present. It accommodates inmates at all security levels. Its senior official, equivalent to the warden in most institutions, is titled the Executive Director, to reflect that that is the senior position responsible for overseeing the RPC’s correctional and clinical work. The RPC’s dual character means that, in addition to the population management issues that arise in other institutions for such things as gang membership or offence types, it must account for the differentiations arising from psychiatric status. Because mental illness is overlaid on other issues, security is affected. For example, many inmates have a high risk of self-harm, and some inmates might have a limited ability to understand the consequences of their actions, either because of their illness or because of their medication.

23 In that environment, security decisions must often be made in intense circumstances. The SIO’s role of providing comprehensive and detailed intelligence is critical to making those decisions. Ms. Garwood‑Filbert provided as an example the transfer to the RPC of a high-profile patient from Alberta. Although very little verified information accompanied the patient, staff at the parent institution had spread rumours about the patient to RPC staff, who were very apprehensive about the transfer. The information that the SIO was able to gather from the other institution was crucial to preparing a treatment plan for the patient and to allaying staff concerns. The SIO’s role can be key to determining the appropriate placement and program for patients and for such issues as establishing visitor protocols.

24 Ms. Garwood‑Filbert supported Mr. van der Hoek’s description of the SIO’s role in investigating staff members’ conduct. If it appears that a staff member is implicated in a situation that creates a security threat, the SIO must investigate and provide intelligence about the staff member’s involvement. If those implications affect the terms and conditions of the staff member’s employment, they are passed to a manager; the SIO does not deal with them. The SIO is a gatekeeper for much information and is responsible for determining the person most appropriate to handle specific intelligence.

25 Ms. Garwood‑Filbert was asked under cross-examination to identify the RPC’s management team. In addition to the executive director (the warden), she listed herself as the deputy warden, along with the assistant warden, operations, the assistant warden, interventions, the assistant warden, management services, and the SIO on the corrections side, and the clinical director, the associate clinical director, the program managers and the nursing shift supervisor on the clinical side. She said that some differentiation exists between the officials in terms of their authority to access sensitive information, with the SIO having access to secret information and the warden and deputy warden having top secret status.

26 The applicant’s third witness was Paul Woodward, Associate Director-General of Intelligence Analysis and Monitoring. Mr. Woodward indicated that his office is responsible for developing SIO job descriptions and mandates. He pointed to the organizational charts in evidence (Exhibit E-3), which showed that the SIO’s position in the hierarchy falls just below the warden and deputy warden and above other managers, such as the assistant wardens. He said that that reflects the nature of the information that the SIO gathers and analyzes and his or her direct input into immediate and strategic decisions. The RPC’s organizational chart (Exhibit E-4) differs slightly, showing the SIO on the same level as the assistant warden. Referring to a document entitled, “Institutional Management Structure: Roles and Responsibilities” (Exhibit E-5), Mr. Woodward said that the SIO is viewed as the primary officer responsible for security from an intelligence perspective. The SIO’s role is critical to identifying significant risks or threats. Although all employees are required to report anything they see that might present a risk, the SIO assesses the significance of that information and recommends an action plan. That is a key aspect of population management, which, according to Mr. Woodward, is “about everything we do.” Placing offenders and choosing plans for handling them are heavily dependent on the SIO’s security intelligence. Particularly when dealing with short-term issues, the deputy warden relies almost exclusively on the SIO’s analyses and options.

27 Mr. Woodward said that the current SIO role is designed to support the objective of “intelligence-led corrections.” In contrast to the earlier static model of security, in which an institution would react when a security risk materialized, the emphasis is now on proactively gathering information and using it to mitigate risk. The SIO’s expertise is important, as it allows management to make well-informed decisions based on an understanding of the environment and of trends as well as immediate risks.

28 Mr. Woodward commented on guidelines for the use of non-intrusive search tools (Exhibit E-6), which indicate that the head of the institution can designate someone to conduct risk assessments and interviews when non-intrusive search tools, such as scanners or dogs, indicate the possible presence of a prohibited item or substance. It is logical that, given the nature of the required expertise, the SIO would be designated that task, which might entail assessing staff as well as visitors or offenders. Mr. Woodward expressed the opinion that, were the SIO a bargaining unit member, such circumstances could pose a conflict of interest. He also pointed out documents (Exhibits E-6 and E-7) that outline the SIO’s role as part of the RPC’s crisis management team and suggested that that would be a difficult role for an SIO as a member of the bargaining unit.

29 In his testimony, Mr. Woodward said that the SIO has significant autonomy in deciding how to gather and assess information. Although the Institutional Strategic Intelligence Committee, usually consisting of the warden, the deputy warden, the assistant warden, operations, and the assistant warden, interventions, along with the SIO, have broad discussions establishing a general framework for security issues, it does not significantly affect the necessity for the SIO to judge how to proceed each day.

30 Although Mr. Woodward agreed that the SIO is not involved in deciding the employment consequences of a staff member’s misconduct, many instances of misconduct become known in an SIO’s investigation of security risks. The SIO must be able to consider that information when investigating and assessing risk.

31 The Public Service Alliance of Canada (PSAC or “the bargaining agent”) called Mr. Cossette, the SIO whose position is the subject of this application for exclusion. Mr. Cossette said that he has been employed at the RPC for approximately 22 years. He became an IPSO, the position which was modified to become the SIO position, 16 years prior to the time of the hearing.

32 Mr. Cossette was asked to describe his daily work as the SIO. He indicated that, generally, a morning meeting is held at the beginning of his shift, which involves a briefing on the previous day’s events. In cross-examination, Mr. Cossette confirmed that those in attendance are from the clinical and the correctional sides of the RPC. On occasion, the meeting is followed by a discussion between Mr. Cossette as the SIO and others, such as the deputy warden and a unit manager, about specific issues, such as how to manage an incompatibility between patients.

33 After the meeting, Mr. Cossette said that he typically returns to his office and enters information from the OSORs into the Offender Management System. He reviews the mail and email and examines any sensitive observation reports made directly to his office. If something appears urgent, he may meet again with the deputy warden, his primary contact, to discuss how to handle it. Mr. Cossette stressed that every day varies considerably; as he put it, “The institution will determine what kind of day you have.”

34 He described the SIO’s population management role as collecting and analyzing information and helping develop an action plan based on that information. The decision about what action to take typically involves many stakeholders, including unit managers and clinical staff, and could involve a treatment plan as well as an operational action plan.

35 With respect to investigating staff, Mr. Cossette acknowledged that he sometimes receives information suggesting misconduct by a staff member, at times through the OSORs submitted by staff. However, he indicated that has happened only seven or eight times in his career. He testified that he interprets the sentence in the SIO position description (Exhibit E-2) that states that the SIO “… is not involved in the investigation of staff members” literally and that he does not investigate staff conduct. On the other hand, he conceded that it is necessary to do something with the information; most often, he passes it on to the deputy warden. He said that, when passing it on, it is important to consider the credibility or reliability of its source and that he tries to convey that consideration. Mr. Cossette said that circumstances could dictate that he recommend immediate action, for example, if a physical threat was made against someone or if clear grounds existed for calling the police, but in general, he tries to pass on the information in a way that allows managers to make any necessary decisions about staff members.

36 He gave as a recent example an allegation that a staff member was involved in an inappropriate relationship with a patient. Senior managers indicated to Mr. Cossette that they had decided the staff member’s phone conversation should be wire tapped. The question of who should listen to the conversations was referred to regional headquarters. On the advice of regional headquarters, it was decided that a senior manager should listen. Mr. Cossette’s role was to ensure that the technical facility for listening to the calls was in place and that it worked properly. He had to listen to the calls briefly but only to determine that the equipment was working properly. Although Mr. Cossette supervises one employee and occasionally consults her personnel file, he said that, unlike Mr. van der Hoek, he could not imagine why he would consult other employees’ personnel files when considering allegations of misconduct against them.

37 Mr. Cossette was referred to the Commissioner’s Directive about peace officer designations (Exhibit U-1). He said that he understood that, under the directive, he has the power to make an arrest or use appropriate force but said that that did not differentiate him from other employees. Similarly, he indicated that it was clear that all employees have a responsibility to report misconduct by other employees, as indicated in a message from the Commissioner (Exhibit U-2).

38 Mr. Cossette said that he saw himself as an adviser to the managers, as someone who provided them with information and an interpretation of the information based on the expertise that he had gained during his career. He said that he tried to give the warden and deputy warden the best possible advice. His role is not to worry about whether they take the advice, although in cross-examination he stated that he normally expects that his recommendations will be followed. He testified that he thought that his role was important but that he did not see himself as part of the management team. He acknowledged that his is considered a leadership position. He said that being excluded from the bargaining unit would probably not influence how he approaches his job. He would consider that he would have the same obligations as he does now.

39 Mr. Cossette said that it is important for an SIO to maintain a close working relationship with line staff, who are the source of much of the information on which the SIO depends. Line staff need to trust the SIO so that they will feel comfortable and so that they will continue to share sensitive information. That is one reason it is important for the SIO to make the boundary clear when investigating allegations of staff member misconduct.

40 Mr. Cossette agreed with the applicant’s witnesses that the need-to-know principle is important when handling security information. Justification is required to grant access to information, and Mr. Cossette does not grant access simply because someone is curious; it must be linked to the responsibilities of the person making the request. In cross-examination, he said that he is often in a position to decide who has access to information.

41 With respect to involvement in labour relations issues, Mr. Cossette said that he has never been involved in negotiations or other collective bargaining activity and that his only experience with a strike was when his position was excluded at an earlier time, and he filled in some staff roles, such as exercising inmates. That made it difficult for him to comment on whether he thought membership in the bargaining unit would create problems in the event of a labour dispute.

42 The PSAC called Barry Stolar, currently a regional representative for the Union of Solicitor General Employees, the PSAC component which represents employees of the Correctional Service of Canada unionized by the PSAC. Mr. Stolar’s substantive position is as a laundry supervisor at the RPC. He was a steward and a local president before entering his current job. Mr. Stolar’s testimony addressed the concern expressed by the applicant that including the SIO in the bargaining unit would create labour relations difficulties, including depriving the applicant of important expertise during a labour dispute.

43 Mr. Stolar testified that no insuperable difficulty has ever appeared when dealing with security risks in an industrial dispute. The bargaining agent is cognizant of the applicant’s security concerns and in the past successfully negotiated protocols that provided for sufficient employees during a strike to address any security issues. In past strikes, the SIO not been directly involved in those negotiations, as the predecessor IPSO position was excluded. However, Mr. Stolar expressed the opinion that, based on past dealings between the bargaining agent and the applicant, it would not be difficult to work out an appropriate way of handling the applicant’s ongoing need for security intelligence during a dispute.

B. Applicant’s argument

44 Counsel for the applicant conceded that this application for exclusion is based on somewhat unusual grounds and that earlier exclusion applications have not commented extensively on such grounds. The applicant relied on paragraph 59(1)(g) of the PSLRA for its claim that the SIO position “… should not be included in a bargaining unit for reasons of conflict of interest or by reason of the person’s duties and responsibilities to the employer …” He acknowledged that his cited authorities are of considerable age and are of somewhat limited use, although they do illuminate some aspects of the relevant issues.

45 Counsel for the applicant noted that differences exist in the descriptions given by Mr. Cossette and Mr. van der Hoek of the SIO’s role. He suggested that Mr. Cossette, although clearly aware of the role’s importance, understated the range of duties and the closeness of the relationship between the SIO and the most senior managers of the institution, who are the warden (the executive director for the RPC) and the deputy warden.

46 Counsel for the applicant also addressed the bargaining agent’s efforts to show that, with documents like the Commissioner’s Directives on peace officer designations (Exhibit U-1), the Code of Discipline (Exhibit U-4) and the Commissioner’s message about the duty to report employees’ misconduct (Exhibit U-3), the SIO’s responsibilities to report information and to deal with security issues do not differ from those of other employees. He maintained that those descriptions of the employees’ role failed to capture — and failed to contradict — the SIO’s distinct responsibilities for security issues. He also alluded to the delegation of authority document (Exhibit U-3), which shows that the SIO does not have significant authority in the management hierarchy. That might be important were the applicant basing its application on the SIO’s management responsibilities. In fact, the applicant accepted that the SIO’s duties that could be classed as management responsibilities are minimal, which is not the basis of the application to exclude the SIO’s position.

47 Counsel for the applicant referred me to a number of decisions, nearly all by the Public Service Staff Relations Board (“the former Board”), dealing with excluding employees under statutory provisions equivalent to the present subsection 59(1) of the PSLRA. He conceded that the fact-sensitive nature of exclusion issues makes it difficult to identify any direct analogies to the circumstances of this application. He also suggested that the former Board had difficulty articulating specific principles to exercise its discretion to exclude an employee under the predecessors to paragraph 59(1)(g) and that the cases that he provided contained examples of that difficulty.

48 Nonetheless, counsel for the applicant argued that three themes could be identified in the cases that provide the basis for determining the application of paragraph 59(1)(g) of the PSLRA in this case. He cautioned that those themes are closely linked conceptually and that the older decisions do not always clearly differentiate them. The broadest theme interprets paragraph 59(1)(g) as giving the Public Service Labour Relations Board (PSLRB) the discretion to exclude a position on the broad grounds that its “duties and responsibilities” justify its exclusion, apart from any specific question of managerial or confidential status or of direct conflict of interest, such as alluded to in paragraphs 59(1)(a) to (f) and (h) and apart from the concept of “conflict of interest” in paragraph 59(1)(g). Counsel for the applicant noted that it is difficult to find a discussion of that idea in the case law. In Treasury Board v. Public Service Alliance of Canada, PSSRB File Nos. 172-02-884 A and 172-02-886 A (19971219) (Andres and Webb), the former Board’s chairperson intimated in the following terms at page 13 that such an overarching interpretation of the comparable statutory provision was available:

…

Under paragraph 5.1(1)(d), the Board has some discretion in determining whether the duties and responsibilities of a position so closely associate the incumbent of that position with the employer as to warrant exclusion or whether there is likelihood of serious conflict of interest between the duties of the position and membership in the bargaining unit. It is under this heading that the “management team” concept developed by the Board over the years has some application.

49 In that passage, the use of “or” in the fourth line suggests a distinction between the concept of conflict of interest and the broader idea that the duties and responsibilities of the position considered as a whole are grounds for exclusion. Canada (Treasury Board) v. Public Service Alliance of Canada, PSSRB File No. 176‑02‑287 (19791009), at para 66 , hints similarly, as follows:

66. While the Board is not precluded from designating a person under paragraph (g) for other reasons which bring the person(s) within the provision of that paragraph, it is of the view that membership in the management team with an inherent possibility of conflict of interest is a sound criterion to be applied under paragraph (g) and the present application pertaining to Mr. Sisson will be measured against it.

50 Counsel for the applicant argued that, if the SIO’s duties are considered as a whole, then the position’s exclusion from the bargaining unit is justified aside from any particular conflict of interest or any set of managerial duties. He suggested that information is the lifeblood of a decision maker and that the SIO’s role in gathering and shaping information is critical to the decisions that the warden and deputy warden of an institution make. As the eyes and ears of senior management in an institution, the SIO is not merely a conduit for unfiltered information. The SIO also assesses the information and decides what should be passed on, along with its significance. The warden and deputy warden must be able to have absolute confidence that the intelligence that they receive will provide a sound foundation for their decision making.

51 The second theme is conflict of interest, the concept that an employee’s duties might create an unresolvable tension between obligations to the applicant and the employee’s status as a member of a bargaining unit. Examples of possible conflicts of interest mentioned in the cited cases are the requirement that the employee possess or handle confidential information, the expectation that the employee will make expert professional judgments, or the possibility that the employee will be involved in management’s decision making, particularly with respect to labour relations. Counsel for the applicant noted that Board members have often pointed out that such aspects of an employee’s position may or may not be found to create a conflict of interest of the kind that would justify its exclusion from the bargaining unit. For example, in Public Service Alliance of Canada v. Office of the Auditor General of Canada, PSSRB File No. 172‑14-297 (19800319) (Lalonde), at para 19 and 20, the former Board commented that access to confidential information is not enough to justify exclusion, as many employees are expected to handle such information with discretion. In Treasury Board v. Association of Public Service Financial Administrators, PSSRB File Nos. 172-02-1003 and 1004 (19981202), at page 45, the former Board raised the question of whether the incumbents in the positions at issue would have a “foot in both camps.” The former Board went on to find that, although the incumbents would be responsible for providing important technical information that would be used in management’s decision making, they would play no direct role in making decisions.

52 Counsel for the applicant argued that, as in Lalonde, the SIO does not simply possess sensitive information but also has major responsibilities with respect to assessing and using it. The SIO monitors access to the information based on the need‑to-know principle and maintains a close relationship with the institution’s managers to provide support for their decision making. The SIO’s location on the organizational chart is not based on his or her line authority in the management hierarchy but is indicative of the significance to senior management of the intelligence that he or she can provide and also of the tension that would arise were the SIO included in the bargaining unit. Counsel for the applicant argued that, as in Lalonde, a conflict of interest could arise because the SIO “participate[s] in, or [is] privy to, the processes of formulating policies, or decision-making [sic], or administrative management at the higher levels of the particular sector of the public service in which [he or she is] employed.”

53 Counsel for the applicant also argued that a conflict of interest might arise about an SIO’s possible role in the bargaining agent’s affairs were the position included in the bargaining unit and pointed out that the former Board mentioned that consideration in Professional Institute of the Public Service v. Treasury Board, PSSRB File No. 172-02-31 (19710714) (Gestrin and Sunga), and Public Service Alliance of Canada v. Canada (Treasury Board - Purchasing and Supply Group Bargaining Unit), PSSRB File No. 174-02-250 (19770214) (Lemieux).

54 Counsel for the applicant argued further that a conflict of interest could arise from some particular responsibilities of the SIO. Mr. Woodward testified that, since the SIO position has been included (the IPSO position was excluded), the SIOs have not been involved in assessing threat risks about employees’ access to institutions, as the applicant thought that that would put them in an awkward position. However, it would be logical for the SIOs to perform those assessments, given the nature of their expertise. Counsel for the applicant also referred to the testimonies of Mr. van der Hoek and Mr. Cossette, which indicated that, on occasion, they were presented with information that implicated staff members in acts of misconduct. Their testimonies differed to some extent about the degree to which an SIO would pursue information about a staff member. However, it was clear from their evidence that the SIOs could expect to come across information about other employees and that they would have to determine its credibility and how it should be handled (although it was also clear that they would not be involved in the employment aspects of such allegations). Counsel for the applicant suggested that the example that Mr. Cossette chose, about an allegation of an inappropriate relationship, did not present the possible conflict of interest as clearly as other examples might have, such as allegations that a staff member had facilitated the entry of contraband into the institution. In that more complicated scenario, it might be appropriate for the SIO, as Mr. van der Hoek suggested, to continue to monitor the situation and to hold off passing it to a manager, to be sure that as much intelligence would be available as possible.

55 Although counsel for the applicant accepted Mr. Stolar’s evidence that the bargaining agent and the applicant usually discuss security and essential services to be provided in the event of a labour dispute, he argued that the applicant could have a different view of what is adequate in terms of security than the bargaining agent and that it requires the SIO’s intelligence when assessing the risks. To ensure that the SIO remains fully committed to providing candid and comprehensive information in a labour dispute, it is necessary to eliminate the potential for divided loyalties.

56 The third theme identified by counsel for the applicant is the concept of membership on the management team. In Gestrin and Sunga, decided in 1971, the former Board found at paragraph 8 that the discretion accorded under the comparable statutory provision “… should be used to permit the designation of persons who, although not otherwise described in heads (iii) to (vi), are in essence to be regarded as members of what might be referred to as the ‘management team.’” In Lalonde, at paragraph 16, the former Board suggested that “… Board cases have perceived membership on the management team and the likelihood of conflict of interest as two sides of the same coin” but went on to state that those two ideas were not inevitably linked. Indeed, in Lemieux, the former Board stated as follows at paragraph 17:

[17] … However, if it can be said that all cases of membership on the management team entail the likelihood of conflict of interest, it does not follow that all cases of conflict of interest are necessarily linked to membership on the management team…

57 Counsel for the applicant argued that, although that quote suggests that the criterion of membership on the management team is distinct from a conflict of interest, those cases do not clearly define the management team. He suggested that some of the indicators mentioned in Lemieux at paragraph 14 — a degree of freedom of action, independence and discretion associated with a position — could be qualifications for membership on the management team. In addition, other concepts, like the scope of the employee’s activities, the sensitivity of the information that the employee possesses, the level of the institution at which the employee is consulted and the employee’s decision making authority might also be factors to consider when assessing whether an employee should be considered a member of the management team.

58 In the case of the SIO position, counsel for the applicant argued that the incumbent has significant autonomy and discretion and the power to make decisions. Most important, the SIO has considerable latitude to decide the information that is most important and that therefore should be conveyed to senior management. What the SIO communicates has considerable weight in determining the operational and even the strategic priorities for the institution. The SIO is not a mere “mailbox” that passes on all received information; the SIO must weigh and shape the information to provide useful intelligence to managers. Although it is true that the warden and deputy warden have the ultimate decision-making authority, the SIO plays a significant role in those decisions and is responsible for making critical and sophisticated judgments that have important implications for the institution’s safety and security.

III. Summaries for the respondent

A. Respondent’s argument

59 The respondent acknowledged that the SIO has responsibility to gather, keep safe and analyze information vital to the institution’s security and that the applicant is entitled to hold the SIO to high standards of judgment, discretion, honesty and trustworthiness. She argued that, however, the applicant failed to show that the expectations of the SIO in those respects is qualitatively different from the expectations of all employees of the applicant. Although the consequences of an error by an SIO can be serious, the same can be said of all the applicant’s staff.

60 The respondent also acknowledged that this application raises difficult issues and that it is not easy to decide whether, on balance, this position should be excluded under paragraph 59(1)(g) of the PSLRA. She suggested that, with so much room for doubt, the PSLRB should lean toward including a position rather than excluding it. She referred to the former Board’s comments in Andres and Webb that the right to membership in a bargaining unit should not be removed lightly and that the applicant has an obligation to arrange its affairs to minimize the need to exclude employees. She noted as an example of the feasibility of rearranging duties to avoid the need for exclusion the fact that, since the SIO position has been in the bargaining unit, the SIOs have not been assigned to handle risk assessments on other employees for the purposes of entering the institution.

61 Although it is true that the SIO attends meetings with managers to provide information and advice, those aspects of the SIO’s responsibilities do not justify excluding the position. The SIO does not make the final decisions, and even if the SIO’s recommendations are often followed, it signifies only that the SIO provides sound and reliable information. It is clear from the evidence that the SIO has a duty to report wrongdoing by other employees, which often places the SIO in an awkward position, but the same can be said of all members of the applicant’s staff, who are also required to report co-worker infractions.

62 The respondent addressed the applicant’s argument that including the SIO position in the bargaining unit would create severe difficulties in the event of a labour dispute. She pointed to Mr. Stolar’s testimony that the applicant and the bargaining agent have successfully dealt with essential services when the need arose and argued that that process can be relied on to ensure that the applicant has access to necessary intelligence in the event of a strike.

63 The respondent also responded to the suggestion that the organizational charts place the SIO at a point in the institutional structure at which the conclusion must be drawn that the SIO is part of the management team. She argued that the organizational charts make it clear that the SIO does not have line authority as part of the management hierarchy and that they indicate only that the SIO’s duties involve more contact with the warden and deputy warden than with others who make decisions.

IV. Applicant’s reply

64 Counsel for the applicant acknowledged that the consequences of removing bargaining agent representation can be serious and said that the applicant would not expect a request to be successful without strong justification. He argued that, in this case, tension exists between the SIO’s duties and the SIO’s inclusion in the bargaining unit and that the testimony about how to deal with information about other staff members indicated that the SIO might feel “squeezed.” The testimony about how an SIO assesses information and shapes it before passing it to the warden and deputy warden reinforces the point that the SIO acts as a filter for information and that senior managers could not make proper decisions without that judgment and synthesis.

V. Reasons

65 The parties agreed that the question of whether the SIO position should be excluded from the bargaining unit is not easy to answer. The more typical instances when exclusion is sought involve the kinds of issues alluded to in paragraphs 59(1)(a) to (f) and (h) of the PSLRA, which are whether an employee has managerial authority, whether the employee’s work has implications for the terms and conditions of employment of other employees or the labour relations between the applicant and a bargaining agent, or whether an employee is in a confidential position with respect to labour issues.

66 Under paragraph 59(1)(g) of the PSLRA, the PSLRB is invited to consider the cases of employees with duties that do not match any of the categories in the other paragraphs and to decide whether, despite the absence of the more usual grounds for exclusion, the employee should be excluded “… for reasons of conflict of interest or by reason of the person’s duties and responsibilities to the employer …” The applicant seeks the exclusion of the SIO position on either or both of those grounds.

67 As counsel for the applicant admitted when he placed before me a large number of decisions that interpret variants of paragraph 59(1)(g) of the PSLRA that have appeared in successive legislation, those decisions provide limited guidance on the criteria that should be used when determining whether a position falls within the scope of that paragraph.

68 The use of the term “conflict of interest” in paragraph 59(1)(g) of the PSLRA is somewhat ambiguous. The rationale often provided in the jurisprudence for excluding employees on the grounds that they have “authority over employees” (paragraph 59(1)(e)), are “… involved in the process of collective bargaining on behalf of the employer …” (paragraph 59(1)(f)), or that they provide “… advice on labour relations, staffing or classification …” (paragraph 59(1)(c)), is that those functions create a conflict between the duties associated with an employee’s position and the employee’s status as a member of a bargaining unit.

69 Paragraph 59(1)(g) of the PSLRA is an umbrella provision that seems meant to catch situations in which excluding an employee can be justified on one of a broad range of grounds not captured by the more specific descriptions in the other paragraphs. The term “conflict of interest” could mean either that the conflict must be identified by examining the duties and responsibilities performed by the employee as a whole (rather than by referring to any specific exercise of managerial authority, decision-making power or labour relations function) or that the specific feature of the position that gives rise to the conflict of interest is not caught by the other paragraphs because not every instance in which a conflict could occur can be anticipated when a statute is drafted.

70 The second ground for exclusion under paragraph 59(1)(g) of the PSLRA — “… the person’s duties and responsibilities to the employer …” — is even more open-ended. That phrase confers on the PSLRB a very broad discretion to exclude an employee on the basis of aspects of his or her duties and responsibilities and to call on adjudicators to carefully consider, under that paragraph, the overall relationship between the position and the applicant’s interests. In that context, it is perhaps not surprising that the case law has failed to articulate a set of clear criteria for applying that provision. At one point, in Gestrin and Sunga, the former Board speculated that the earlier version of that provision might require determining whether an employee is a member of the management team. Later cases, like Andres and Webb, held that the management team idea would not capture all the conflicts of interest that might justify exclusion under that provision and that adjudicators should consider the issue more broadly. Although the decisions put before me often treat the concepts of the “management team” and “conflict of interest” as being closely related and as part of a holistic approach to assessing a position, they do not provide much in the way of definition or concrete criteria for making such an assessment. To be fair, since this provision seems designed as a catch-all that gives the PSLRB wide scope to consider positions for exclusion that are not ordinary and that cannot be anticipated, the PSLRB should not be expected to fetter its discretion by attempting to provide a more restrictive definition of its task.

71 Adjudicators have on many occasions counselled caution when deciding whether a position should be excluded from a bargaining unit. The loss of the bargaining agent’s protection and of the benefit of a collective agreement could have significant implications for an employee. Those advantages should not lightly be cast aside.

72 On the other hand, in some circumstances, including an employee in a bargaining unit could impair the effectiveness of that employee’s performance of duties essential to the applicant. Paragraph 59(1)(g) of the PSLRA suggests that the reasons for making a finding of that risk could include factors not ordinarily considered. When a finding is made of a fundamental incompatibility between an employee’s duties and inclusion in a bargaining unit, the employee’s position may legitimately be excluded.

73 The evidence about the duties associated with the SIO position, in particular the extensive descriptions by Mr. van der Hoek and Mr. Cossette of their experiences as SIOs, made it clear that many features of the usual profile of an excluded position are not present. An SIO’s supervision of other employees is minimal. The SIOs do not have the authority to make final management decisions. Although aspects of their information gathering could bring to their attention information that ultimately affects decisions about discipline or about the employment of other employees, they are not directly involved in those decisions.

74 Although the indicators that often support exclusion are not present in this case, the parties agreed that the SIO performs a unique and critical role in an institution or in a parole district. The SIO gathers and seeks information, assesses its credibility and implications, assigns it a priority, and develops recommendations for action to counteract the threats that it describes. Developing reliable intelligence and strategies for addressing risks is an important contribution to an operation.

75 The descriptions given by Mr. van der Hoek and Mr. Cossette of the SIO’s role differed somewhat. Mr. van der Hoek described an employee who enjoys the absolute confidence of the warden and deputy warden, who is heavily involved in making decisions about the steps to be taken with respect to security issues, and whose advice is virtually never ignored or second-guessed. Mr. Cossette was somewhat more diffident about the SIO’s authority to make definitive assessments. Although he did not deny that the SIO is called on to exercise skill in compiling and prioritizing information, the SIO’s role as he described it fell short of actual involvement in decision making. He saw himself more as a purveyor of information — admittedly important information — than part of the decision-making team. Counsel for the applicant suggested that that difference between the testimonies of Mr. van der Hoek and Mr. Cossette raised an issue of the credibility of Mr. Cossette’s evidence. I have concluded that the respective testimonies of the two witnesses does not raise any such issue. I believe that both witnesses described in good faith their perspectives on the SIO role and that any differences in their testimony reflect the inherent difficulty of characterizing the status of that position in an institution.

76 Paragraph 59(1)(g) of the PSLRA provides me considerable discretion when deciding whether this position should be excluded. Of course, I cannot simply remove the position from the bargaining unit without a rationale. I agree with counsel for the applicant that the jurisprudence invoking that paragraph or its predecessors has not provided any clear definition of the range of circumstances under which it might be applied. That paragraph’s clear intention is to permit the PSLRB to consider situations that cannot be aligned with any of the usual rationales for excluding a position from the bargaining unit. Therefore, it is not surprising that no specific outline of the circumstances covered by that paragraph has been produced. One would expect that paragraph to be used sparingly and that any situation in which it is held to apply would be unusual.

77 I have concluded that the situation presented by this case calls for the application of paragraph 59(1)(g) of the PSLRA. Although the typical hallmarks for exclusion — the exercise of managerial functions, expansive decision-making authority and involvement in labour relations issues — are not associated with the SIO position, it is evident even in Mr. Cossette’s description that the SIO’s duties are thoroughly enmeshed with the decision-making process about security issues at the highest levels of the institution. Despite the efforts of the bargaining agent representative to show that the SIO’s responsibility to convey information and to be alert to security threats does not differ markedly from that of all other employees, it is clear that the SIO’s role is unique. The SIO is not simply a conduit for random information about risks but is responsible for weighing and shaping that information in a way that senior institution managers can rely on with confidence. An SIO has the heavy burden of ensuring that the intelligence provided is based on an accurate weighting and prioritizing of information, that any recommendations represent a reliable assessment of the nature and extent of any threat, and that senior managers can make the necessary decisions with confidence. Those decisions must often be made under demanding and time‑sensitive conditions, and it is vital that the managers and the SIO have a relationship of mutual trust.

78 I am mindful of the caution expressed in a number of earlier decisions to which I was referred that an employee’s rights to collective representation should not be removed lightly. I do not think it necessary, in making this decision, to accept the speculation in counsel for the applicant’s argument about the difficulties that the SIO might encounter in the context of a labour dispute, on the picket line or as the incumbent of an elected position with the bargaining agent. There are many circumstances in which the status of an employee who is privy to important information must be balanced in favour of continued membership in the bargaining unit. An employer would be asked to suffer a certain amount of inconvenience. However, in this case, it is critical that the senior managers of a correctional institution have access at all times to the assistance that can be offered only by the SIO. They must be able to discuss sensitive information and to canvass operational options in an atmosphere of absolute confidence. In my view, that creates a fundamental incompatibility between the SIO’s role and membership in a bargaining unit.

79 The use of the word “or” in paragraph 59(1)(g) of the PSLRA suggests that there is a distinction between the circumstances that would fall under a conflict of interest and those that would justify the exclusion “… by reason of the person’s duties and responsibilities to the employer …” It is somewhat difficult to consider the kind of incompatibility I see between the SIO’s duties and membership in the bargaining unit without characterizing it as a conflict of interest, but I think that the SIO position could be excluded in accordance with either description. Were the SIO position included, the unique relationship of confidence between the SIO and the institution’s senior managers would give rise to a conflict between that relationship and the SIO’s obligations to fellow members of the bargaining unit. To put the rationale for exclusion on the more general footing of “… duties and responsibilities to the employer” might be another way of saying the same thing in this case, although I do not wish to foreclose considering circumstances in which the “duties and responsibilities” ground is not associated with a conflict of interest.

80 For all of the above reasons, the PSLRB makes the following order:

VI. Order

81 The application is allowed and I order that the position of Security Intelligence Officer at the Regional Psychiatric Centre in Saskatoon, Saskatchewan be excluded from the Program & Administrative Services Bargaining Unit.

April 10, 2012.

Beth Bilson,
Board Member