The employing officer, (the Superintendent of Kansas City Terminal) considered the claimant in the instant case, and he made his knowledge of the ability of the claimant known to his superior officer in the following language:

Furthermore, the Superintendent talked with Mr. Reedy in his office and upon receiving a letter from the claimant employe, replied thereto under date of October 30 1941, as per copy of letter marked Exhibit No. 2. He informed him that he had not been promoted to the foreman position, that he did not find him qualified, and indicated that he found it an unpleasant task to have to so inform him. Apparently, the claimant employe had the impression that because he was chosen to fill the foreman vacancy temporarily as heretofore explained, he was promoted. If so, that was a misunderstanding on his part, as Rule 9 (a) very plainly states that promotion does not take place in such circumstances. In this connection, it is not necessary in all cases that the employe who is used temporarily has the requisite qualifications for the position in the same degree that is required on a permanent basis. If the regular foreman had the work of the gang all laid out, if the employes in the gang were reasonably familiar with their part in carrying out his plans and if there were to be no change in the lineup, an employe lacking in the requisite qualifications to fill the position permanently could nevertheless get by temporarily. The employing officer, who is aware of the conditions, must be relied upon to determine the action to be taken. He did so in tis case, and he complied with the Agreement rules.

In summing up, it will be found the gist of the dispute is whether the claimant employe possessed sufficient ability and merit to warrant his promotion to the B. & B. Foreman position. The employing officer found him lacking of the requisite ability. He exercised his best judgment in the matter sincerely and in good faith after due deliberation. There has been no showing and no claim that he acted capriciously, arbitrarily or unreasonably. The employing officer's judgment in the matter therefore must be upheld. According to prior awards of this Division, it will not impose its judgment on the carrier under such circumstances.

At noon, Sept. 9, 1941 Foreman Corwin of the Kansas City Terminal B. & B. Gang suddenly became ill and designated his senior mechanic, Claimant T. J. Reedy, to look after and supervise the work in place of the foreman. Mr. Reedy continued functioning as temporary foreman from that time until the evening of Sept. 12th. Upon learning that Foreman Corwin would be absent more than thirty days, B. & B. Mechanic Carter was promoted to position of foreman and worked as such from Sept. 13th to Oct. 31st, 1941. Foreman Corwin resumed service Nov. 1st, 1941. Claimant Reedy holds seniority as B. & B. mechanic as of Dec. 1, 1928. F. C. Carter holds seniority as B. & B. mechanic as of July 30, 1938.

The Employes rely on Rules 3 and 19 of the current agreement which we quote:

In the Employes' brief on page 16 of the record they state:

"We agree with the Carrier's statement; the question is whether the Claimant, T. J. Reedy, possessed sufficient ability and merit to warrant his promotion."

In Award No. 1147, this Board with Referee Sharfman said:

"The applicable rules of the Agreement governing the exercise of seniority embrace fitness and ability, as well as seniority, as a relevant consideration. Only when there is sufficient fitness and ability is it provided that seniority shall prevail. In these circumstances a lack of adequate fitness and ability on the part of the applicant would clearly constitute a valid ground for the carrier's departure from seniority. Even on the assumption that the rule dealing with 'time in which to qualify' (which, by its express terms, refers only to 'employes entitled to bulletined positions') should be deemed to be applicable to such displacements of junior employes as are here involved, it would be necessary to establish the existence of reasonably sufficient fitness and ability before the obligation would attach to the carrier to afford an opportunity to the applicant to qualify for the positions."

In Award No. 2031 this Board, with Judge Shaw as referee, said:

"In the present case it is admitted by both parties that the Employer is the first judge to determine fitness and ability. This would necessarily be so unless the Carrier should renounce all ordinary attributes of management, and it follows from the bare statement of this rule that when the Carrier has made a decision as to fitness and ability the employe has the burden of showing some matter in the record to overcome that decision."

In Award No. 2142 this Division, with Judge Thaxter as referee, said:

"We have been over the record with the very greatest care to see if there is any reasonable ground on which this Board would be justified in overruling the decision of the Carrier. We can find none. It is not a question of what we would have done had we been in the Carrier's place. It is solely a question whether the Carrier has shown reasonable ground for its action."

In Award No. 2350 this Division, with Judge Carter as referee, said:

"Whether an employe is qualified for a position is a matter exclusively for the Carrier to determine, and such a determination once made will be sustained unless it appears that the action of the Carrier was capricious or arbitrary. See Award No. 2299."

"In the second paragraph, Page 3, the Carrier states that the right

for promotion to a particular position rests primarily on the employing

officer, and that that employing officer alone is advised as to the nature

and particular duties and responsibilities which the employe will be

expected to assume and that he has access to the records disclosing the

training, experience, efficiency and seniority of employes to be con

sidered. We are in no disagreement with that the Carrier's statement,

but have found that at times the employing officer may err in his judg

ment in determining whether an employe seeking promotion possesses

sufficient ability and merit to serve in the position to which he seeks

Thus, we find that on the Employes' statement they do not claim that the Carrier in this case was arbitrary or unreasonable but claim that it was an error in judgment. Mere error in judgment is not in itself a showing of being unreasonable or arbitrary and would not justify this Board in reversing the Carrier's findings.

The Employes cite Award No. 2455. That award as we read it is based on the fact that there is no proper showing for the Carrier's action and in this record there is a clear showing that the Carrier investigated the matter and its decision was based upon the conclusion it reached after the investigation.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the evidence of record does not disclose any violation of the Agreement.

AWARD