It is respectfully submitted that the National Railroad Adjustment Board, Second Division, is required by the Railway Labor Act to give effect to the said agreement, which constitutes the applicable agreement between this carrier and the Railway Employes' Department, A. F. of L., System Federation No. 152, and to decide the present dispute in accordance therewith.

The Railway Labor Act, in Section 3, First, Subsection (i) confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out of "grievances or out of the interpretation or application of Agreements concerning rates of pay, rules or working conditions." The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the agreement between the parties to it. To grant the claim of the organization in this case would require the Board to disregard the agreement between the parties, hereinbefore referred to, and impose upon the carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to the applicable agreement. The Board has no jurisdiction or authority to take any such action.

CONCLUSION

The carrier has shown that the claimant was properly disqualified from the machinist position in question on the basis of the written examination; and that he is not entitled to be assigned to the position approximately one month after disqualification on the basis of the applicable agreement.

Therefore, the carrier respectfully submits that your Honorable Board should deny the claim of the organization in this matter.

FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The parties to said dispute were given due notice of hearing thereon.

Rule 2-A-3 reads as follows:

"An employe awarded an advertised position for which he bid, and failing to qualify within ten (10) working days for the position selected, will retain seniority, subject to Rule 3-A-1, and will within five (5) working days return to his former position, unless it has been awarded to a senior employe, in which event he may exercise seniority.

Where it is apparent before the expiration of ten (10) working days that an employe does not possess the necessary ability and fitness to permit him to qualify, he will be removed from the position prior to the expiration of the ten (10) working day period. Other employes displaced in application of this rule may exercise seniority in accordance with Rule 3-D-4.

Employes will be given full cooperation of Supervisory Force and others in their effort to qualify."

The carrier gave the claimant a written examination covering forty-six (46) questions, with various point values established for each question, with eighty per cent (80 %) being the passing grade. The claimant scored 73.27 % which is somewhat below passing, and he was thus disqualified. The agreement does not specifically provide for written tests to determine qualifications, and neither does it specifically prohibit such tests. To determine whether

or not an employe is qualified is usually a matter of judgment by management. Management may use any number of methods to aid it in forming a judgment, and so long as the methods used are fair and reasonable, and administered without discrimination, we cannot substitute our judgment for that of management. We find in this case that management did not exercise its judgment in an arbitrary or discriminatory manner.

AWARD