Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9713
 SECOND DIVISION Docket No. 9092
 2-B&O-CM-'83
 The Second Division consisted of the regular members and in
 addition Referee Gilbert H. Vernon when award was rendered.
 ( Brotherhood Railway Carmen of the United States
Parties to Dispute:
 ( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
That the Baltimore and Ohio Railroad Company violated Rules 16 of the controlling Agreement when they failed to place Carman J. L. Bobbins on the Foremen's seniority roster at Benwood, West Virginia.


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.


On June 6, 1979, a position for a car foreman was advertised at the Carrier ',s Benwood, West Virginia yard. No bids were received from any individuals holding seniority under the foreman's agreement. The Claimant, a carman, as well as two other carmen requested the opportunity to demonstrate their qualifications for the assignment. Beginning June 15, 1979, the Claimant commenced filing the assignment.
On August 14, 1979,'the local chairman brought to the attention of the General Chairman that the claimant had been placed on the position and that as of that date "no asignment has been made in regard to this position." On August 24, the General Chairman wrote the manager of the car department claiming a violation of Rule 9 of the Supervisors Agreement and requested advice as to whether the Carrier intended to give the Claimant a foreman's seniority date under the Supervisors Agreement. The Claimant was removed from the position on September 5, 1979.
 Form 1 Award No. 9713
 Pr<,,e 2 Docket No. 9092
 2-B&O-CM-'83
On September 10, 1979, the Manager of the Car Department advised the General Chairman that in response to the Claimant's request to work the vacancy that the Carrier "... agreed to allow him to work the position on a trial basis and he was advised that we would evaluate his supervisory abilities and determine at a later date his fitness for the position." Further, the Carrier claims no violation of Rule 9 occurred since there had been no assignment. Later, in response to a claim filed on behalf of the Claimant, the Carrier advised the General Chairman that in connection with the evaluation of the Claimant during the trial period, that "at a point in time between 60 and 90 days, it was our considered opinion that Carman J. L. Bobbins did not progress or show sufficient initiative to continue working a supervisors position ..."

 The claim was progressed on the basis that the Carrier violated Rules 9 and IO of the Supervisors Agreement and Rule 16 of the Shopcraft's Agreement. The case was ultimately appealed to both the Second and Fourth Divisions of the Board. The Fourth Division gave consideration to the claim as appealed there, however, in Fourth Division Award 3889 which was rendered on February 11, 1982, they held that inasmuch as the Claimant's regular classification was a carman that the Second Division properly had jurisdiction and they dismissed the case.
Generally speaking, it is the Employes' contention that the Claimant was deprived of foreman's seniority to which he was entitled. They assert he did in fact establish seniority under the provision of Rule 9 of the Supervisors' Agreement which states:

















Form 1 Award No. 9713
 Page 3 Docket No. 9092
 2-B&O-CM-'83
 (2) Any employee under this Agreement who has bid in an assignment
 and has been assigned to it, cannot bad for his previous assignment
 when advertised as a vacancy until it has been bid in and held by at
 least one other employee.
 (3) Should an employee be displaced off of an assignment after
 being the successful applicant, he could rebid his previous assignment
 without it having been held by another employee in the interim.
 (c) Employees holding seniority under this Agreement assigned or
 awarded positions and failing to qualify within thirty days shall be
 returned to former position under this Agreement where they retain
 seniority; i f relinquishing the position at their own request, they
 can only displace the junior supervisor over whom they hold seniority.
 Employees returning to the ranks of shop craft mechanics will be
 governed by Paragraph (g) of Rule 8."
They also take the position that whatever right the Carrier had to evaluate the Claimant had been waived in light of the time lapse between the date of the assignment and the date of the removal. They believe he proved his ability within this time. The removal after this period of time amounted to an abuse of discretion and discriminatory treatment compared to at least one other employe whose circumstance was similar to that of the Claimant. Moreover, removal of the Claimant from the position without an investigation was a violation of the discipline rule according to the Organization.
The Carrier contends that there has been no violation o f Rule 16 of the Shop Crafts Agareement applicable to carmen or any other rule of any other agreement. They point out that Rule 16 -- which was relied upon by the Organization -- requires only that mechanics, and in this case a carman, be given consideration and that it does not require the Carrier to award a position to a mechanic. Additionally, they assert, there is nothing in any agreement which alters their right to determine the qualifications of those it considers for foreman positions and moreover such judgment is within management's prerogatives . The Carrier also takes the position that their prerogatiave was not shown by the Organization to have been exercised in bad faith, arbitrarily or capriciously.
The Carrier also disputes that the Claimant°s treatment was discriminatory noting that this assertion was based on a comparison to another carman, Mr. Bennett, who was assigned a foreman's date. They contend there are few similarities between Mr. Bennett's and the claimant's situation. They point out that Mr. Bennett had previous experience as a supervisor filling in on temporary vacancies before he was "assigned" as a foreman, thus establishing seniority and further that he worked approximately four months as a foreman before being assigned. They contend he was qualified whereas the Claimant was riot.
 Form 1 Award No. 9713
Page 4 Docket No: 9092
 2-B&O-CM-'83
The~Carrier also contends the Board has jurisdiction only to consider issues relating to Rule 16 of the Shopcratt's Agreement. This is for two reasons. First, they note that in progressing the claim to the Board the organization deleted all reference to an alleged violation of any rules contained in the Supervisor's agreement and has stated only "that the Baltimore and Ohio Railroad company violated Rule 16 of the controlling agreement..." Under the circumstances, the rule in the Supervisor's Agreement had not been included in the specific dispute submitted to the Board and therefore the Board may not consider such rules and agreements. Secondly, the Carrier submits that the Second Division is not empowered by the Railway Labor Act to consider and interpret rules of the Supervisors Agreement. They believe this function is exclusively reserved to the Fourth Division of the National Railroad Adjustment Board. Even if the Supervisors Agreement applied there would be no violation under the circumstances, inasmuch as Rule 9 gives the right to the carrier to judge the fitness of employes seeking foreman positions.
A review of the record leads the Board to conclude that there was no violation of the Claimant's contractual rights. There is nothing in the record that convinces us that the Carrier did not have the right to judge the fitness and ability of mechanics seeking promotion to foreman positions. Rule 16 states the following:




Thus, Rule 16 only extends consideration to mechanics and does not alter management's presumed right to promote whom they choose. Further, there is no language in the Agreement which mandates that after working a certain number of days that the Carrier would be required to assign the employe a seniority date as a foreman.
This is not to say the Claimant is totally without a basis_ to question management's decision. While management has the right to make their personnel decisions, there is an implied obligation in exercising those prerogatives that they do so in good faith and in a non-arbitrary and non-capricious manner so as not to constitute an abuse of discretion.
In consideration of the question as to whether management exercised its discretion appropriately or inappropriately, it is the decision of the Board that their decision was not arbitrary, capricious or discriminatory. While the fact he spent 60 days on the job might suggest he was qualified, it is apparent that at least from a comparison to Mr. Bennett that the Carrier customarily required employes to spend considerable amounts of time filing in on temporary vacancies etc. before making a final decision to assign a seniority date. Indeed, such a decision should not be taken lightly. For instance, Second Division Award 6578 makes us mindful of this point:
 Form 1 Award No. 9713
 Page 5 Docket No. 9092
 2-B&O-CM-'83
 "The right to select employes and make judgments as to their competence
 is solely a function and responsibility of management, unless expressly
 limited by contract. (See Award 4525 and Third Division Award 3151
 among others.) Even more emphasis must be placed on management's
 unimpaired right to select supervisors, who are in fact part of
 management. Unless there are specific Rule proscriptions or management
 has acted in an arbitrary and capricious manner, thus prejudging
 employes rights, there can be no invasion of management's prerogative
 to assess competence o f its employes for purposes of promotion among
 other things." (Emphasis added.)




    Claim denied.


                            NATIONAL RAILROAD ALIT USTMENT BOARD

                            By Order of Second Division


Attest-
        Nancy Nancy er - Executive Secretary


Dated at Chicago, Illinois, this 2nd day of November 1983.