The Organization is thus asking this Board to change the agreement. We submit this is the province of collective bargaining and under the Railway Labor Act is beyond the powers of this Board.

OPINION OF BOARD: The joint statement of facts discloses that on April 20, 1951, a vacancy bulletin was posted advertising the position of Assistant Foreman with headquarters in Signal Gang No. 3113 located at Grand Island, Nebraska. Bids were received from E. 0. Sandberg, who had Class 1 seniority date of March 1, 1948, Rand No. 43 on Signal Engineer's Roster No. 5, and from C. B. Baker, who had Class 1 seniority date of March 1, 1948, Rank No. 44 on Signal Engineer's Roster No. 5. The Assistant Foreman position was assigned to C. E. Baker. The Employes now contend that E. 0. Sandberg should have been awarded the position.

The rules of the applicable Agreement have been brought into consideration by the parties in this case. First, the "Note" to Rule 2 (c), which provides:

"Note: Positions of signal inspector, signal foreman and assistant signal foreman will be assigned one regular rest day per week, Sunday if possible, and rules applicable to other employes, covered by this Agreement, sall apply to service on such assigned rest days but will not be subject to the hours of services rules on other days. Conditions heretofore applicable to such employes on Sunday shall hereafter apply on the 6th day of the work week. Positions will be bulletined and appointments made with due consideration for seniority, fitness and ability-the Management to be the judge." (Emphasis added).

"In filling vacancies and new positions covered by this agreement, ability being sufficient, seniority rights of employes covered by this agreement will govern."

The record discloses the Employes' position to be "that the carrier has acted in an arbitrary and capricious manner in this particular case." They state that "In the filling of positions ability and fitness being sufficient seniority must prevail." The Record clearly shows that Claimant Sandberg was the senior employe, and it reasonably establishes that he possessed "sufficient" fitness and ability for the position. .

Were it not for the existence in the Agreement of the "Note" to Rule 2 (c), the position of the Employes might reasonably be found meritorious, for the effect of Rule 29 (a), as to positions covered thereby, is indeed that fitness and ability being "sufficient" seniority must prevail. But the "Note" to Rule 2 (c) is a special provision applicable to the Assistant Foreman position, removing this position from the coverage of Rule 29 (a). It is too well established to warrant citation that a special rule governs over a general rule.

The question, then, is as to the meaning of the "Note" to Rule 2 (c). Does it mean as contended y the Employes that fitness and ability being sufficient seniority must govern? If so, that part of the "Note" providing that appointments to assistant signal foreman positions will be "made with due consideration for seniority, fitness and ability-the Management to be the judge", must be treated as pure surplusage. This is so since Rule 29 (a), having the very meaning attributed by the Employes to the just-quoted part of the "Note", would be sufficient to accomplish the parties' intent without use of the justquoted language of the "Note". Parties do not write terms into a formal agreement that they intend to have no effect. This recognized, a term or provision should not be considered surplusage if a reasonable meaning can be given to it consistent with the rest of the agreement. And it seems clear from the

wording of the "Note" itself that the parties intended to give the Carrier much greater discretion in filling assistant signal foreman positions than they intended regarding positions remaining under Rule 29 (a) after the adoption of the "Note" to Rule 2 (c) in its present form.

That the "Note" leaves a great deal of discretion to the Carrier in filling the position in question is emphasized by the words "the Management to be the judge." True, the Carrier must give due consideration to seniority, fitness and ability. But having done so, if the Carrier decides on the basis of such consideration that one of two, or several, competing applicants is the better man for the particular position, the requirements of the "Note" to Rule 2 (c) have been met. Only if the Employee show the Carrier's determination to be arbitrary or capricious, as would be the case were the Carrier not to give reasonable consideration to the three factors stated in the "Note", will there be reason for setting aside the Carrier's determination.

That the Carrier did give due consideration to all required factors is evidenced by the affidavit statement of Signal Engineer D. C. Bettison, as follows:

"In making the appointment, I gave full consideration to the fitness and ability, as well as seniority, of the two applicants. I have been in a position to observe the performance, ability and fitness of each of these two men.

"When Gang 188 was established at Rawlins, both Sundberg and Baker applied for the position of Foreman. At that time both were inexperienced in cab signal case wiring, although both had previously been assigned as foremen. Sundberg was assigned Foreman on Gang 188 and Baker as Signalman. He was later appointed Assistant Foreman on this gang. As the work of this gang progressed, I observed the fitness and ability of each of these men and as a result of my personal observation it was my considered judgment that Baker was displaying and possessed greater fitness and ability than did Sundberg. Thus, at the time the appointments to Gang 3113 were made, I decided that although Mr. Sundberg ranked one point higher on the Signal Engineers' Roster No. b, that Baker was better qualified and better fitted for the position to which I assigned him. I felt he possessed more ability and great fitness than did Sundberg. Before making the appointment, I consulted with the General Signal Engineer and it is my understanding that he also fully considered the appointment. He concurred in my judgment"

The Record also contains an affidavit statement by General Signal Engineer T. W. Hays which, in addition to the statement by Signal Engineer Bettison, strongly supports the conclusion that the Carrier did not act capriciously or arbitrarily in this case.

In support of their contention that the Carrier did act capriciously and arbitrarily the Employes, on the other hand, seem to rely entirely on the fact that Claimant Sundberg had previously served as foreman with this Carrier and the fact that he holds Rank No. 43 on the seniority roster while C. B. Baker only holds Rank No. 44. These arguments would have great weight were Rule 29 (a) applicable here rather than the "Note" to Rule 2 (c). In the existing situation, however, the fact that Claimant Sundberg has previously served as foreman certainly does not make the Carrier's determination under the "Note" to Rule 2 (c) capricious or arbitrary. The Carrier does not deny that Sundberg was the senior employe nor that he had "sufficient" fitness and ability, but as has been noted above, mere "sufficient" ability plus seniority are not conclusive in determining who is to be awarded a position under the "Note" to Rule 2 (c).

In view of the above considerations it must be concluded that the claim in this case is without merit.

That the Carrier did not violate the Agreement.

AWARD