ant's assignment is part of the intricate interlocked layout through which passenger trains enter and leave the Union Station.

As stated by the Chief Engineer to the General Chairman in his letter November 9, 1951, Exhibit A, moving up from laborer to foreman within eighteen months without previous track experience was rapid advancement. The Chief Engineer also stated:

"His failure was, I think, simply due to inexperience and no doubt with more experience and an opportunity he may later qualify as a foreman on a lighter job and then on an extra gang in the Mill Creek Valley." (Union Station territory.)

However, the claimant has failed to take advantage of the opportunity suggested by the Chief Engineer by failing to make application for three different foremen's positions in less complicated territory advertised since his disqualification, resulting in three junior assistant foremen being assigned to them.

Our position is fully summed up in our letter to the General Chairman December 26, 1951, Exhibit B. As our actions were fully in accord with Rule 9, there is no basis for the claim and it should be denied.

(Exhibits not reproduced.)

OPINION OF BOARD: Claimant W. H. McKeown was employed as a track laborer on May 5, 1950 without previous experience. He was made an assistant section foreman July 1, 1950 and was made foreman of Extra Gang No. 6 on September 28, 1951. On October 15, 1951 the Track Supervisor instructed claimant to get material ready to renew 13-15 puzzle on the high speed main line west of Jefferson Avenue, after which he accompanied him to the site and discussed the work that was to be done. Because of dissatisfaction with the work being done, the Carrier demoted claimant on October 19, 1951 to his former position as assistant foreman.

It is the position of the Employes that the Carrier violated the intent and purpose of Rule 22 when it failed and refused to allow claimant's request for a fair and impartial hearing and the summary dismissal from the position he held, on the verbal charge of being disqualified to continue in the position of foreman.

It is the position of the Carrier that claimant was not suspended, dismissed or charged with any offense and that Rule 9 as no written notice of disqualification or hearing as required by Rule 9.

The Employes contend that under Rule 22 (g) "An employe who considers himself otherwise unjustly treated shall have the same right of hearing and appeal as provided in this rule", he has a right to a hearing in the same manner as if his case was one of discipline, by dismissal or suspension.

Rule 9 reads as follows:

"Employes accepting promotion will be given a fair chance to demonstrate their ability to meet the practical requirements of the position, and failing to qualify within sixty (60) calendar days, may return to their former rank in accordance with the seniority provisions of this agreement."

It is the position of the Carrier that the claimant was not suspended, dismissed or charged with any offense, but due to inexperience he failed to demonstrate his ability to act as foreman and that the Carrier is the sole judge of qualifications relating to promotion.

Many cases have been decided in which it was held that the Carrier has the responsibility of determining the fitness and ability of the employe and

the Board will not interfere with the Carrier's decision so long as it does not act in an arbitrary and capricious manner in making the decision. See Award 5603.

Rule 22 is entitled "Discipline and Grievances". It is our opinion that the above Rule is limited to discipline and grievances between the Carrier and its employes.

Rule 9 deals with failing to qualify for promotions. The Rule provides that an employe has no longer than 60 days to demonstrate that he is entitled to a promotion by demonstrating his qualifications for the position he aspires to. The Rule does not mean that the Carrier cannot disqualify an employe prior to the end of the 60 day period if the employe demonstrates his unfitness for the position.

It is our opinion that the facts in this case are to be decided under Rule 9 and that it has not been shown that the Carrier abused its discretion in failing to qualify claimant.

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

AWARD