Problem: Regional Transit Commission
The Regional Transit Commission operates buses in a city with a population of 250,000. Employees of the Commission are represented by the Canadian Auto Workers.
The Commission posted a job opening for an inspector. Inspectors act as lead hands and are not supervisors. They ensure that schedules are met and signs are correctly displayed, deal with complaints from the public, distribute monthly passes, approve the trading of shifts by drivers, and allocate authorized overtime. The job posting provided that the minimum requirements were as follows: Grade 12 education, three years' experience in the transit industry, the ability to make decisions, the ability to complete projects and meet deadlines, the ability to deal with the public, written communication skills, good health, and the ability to walk for extended periods of time.
The collective agreement provides that "Seniority shall always be given utmost consideration in making promotions, demotions and transfers, and when skill and ability are equal, seniority will prevail." The agreement also contained the following management rights clause: "The Commission has and shall retain the exclusive right and power to manage its business and direct its working forces including but without restricting the generality of the foregoing, the right to hire, suspend, discharge, promote, demote and discipline any employee for just cause."
Five individuals applied for the inspector job. As part of the selection process, the Commission gave all five employees a test they had first used for the inspector's job six months earlier. The applicants were tested when they were interviewed, and were not told about the test in advance. The test used was developed after input from current inspectors had been received and an analysis of the inspector's job had been completed. It included questions regarding terms of the collective agreement, mathematics, problem solving, and health and safety.
Jill Akers, who had been employed as a full-time driver for 10 years, was one of the applicants-her first application for an inspector's job. The position was awarded to Voakes, another applicant who had less seniority but a higher test score. It was later determined that Akers' score on the test had been 38 percent, while Voakes had scored 68 percent. It was also found that he had written the same test six months earlier as part of a previous application for an inspector's job. He had improved his score by 22 percent. Voakes had not been provided with a copy of the first test or been advised about the test results.
Akers filed a grievance claiming that she should have been awarded the job.
Question: What arguments might the employer make at the arbitration hearing?