in the Signal Department. This statement was reviewed by the Chief Engineer's staff and it was determined that the claimant was not qualified to cover the vacation relief position.

This Board has previously ruled in Award No. 3537, Referee Carter, that * * * "whether Management has exercised an honest judgment requires an investigation of an intangible thing difficult of ascertainment. We cannot properly substitute our judgment for that of the management because the official charged with the responsibility is usually familiar with the record of the employe, his habits, personality and character, and many other items bearing upon his fitness and ability which cannot reflect in the record presented before this Board."

The Carrier, in summarizing its position, desires to emphasize the following:

1. The Carrier has not bargained away its managerial right with respect to the selection of a qualified employe for promotion to the Foreman Class.

2. The Carrier properly appointed E. W. Tvrdik to the Assistant Foreman position who was the senior qualified applicant.

The Carrier feels that it has conclusively shown that the instant claim is not supported by any provision of the applicable Agreement, the agreed-upon interpretations thereof, or the established practices thereunder.

Consequently, your Board would be required, in order to sustain this case, to substitute its judgment for that of the Carrier, a prerogative which this Board admittedly does not possess.

(Exhibits not reproduced.)

OPINION OF BOARD: The essential facts in this dispute are not in issue. A permanent position was advertised as a new position for the Assistant Foreman's Vacation Relief Schedule which was duly advertised and thereafter awarded by the Carrier to the incumbent, an employe with less seniority than the Claimant.

During the panel discussion in this case, it was urged for the first time that the claim should be dismissed on the grounds that the Statement of Claim does not allege that any specific Rule of the Agreement had been violated by the Carrier and, therefore, did not meet the requirements of Circular No. 1, Rules of Procedure of this Board which provide as follows:

"Under this caption the petitioner or petitioners must clearly state the particular question upon which an award is desired."

The Organization member contends that this is a new matter not raised on the premises and, therefore, cannot be considered at this time. We find that the failure of the Carrier to raise this objection on the property or in its submission here, constitutes waiver and is not properly before us. (Awards 10075, 10315 and 11848.)

The Carrier contends that as the Claimant was not the most senior applicant for the position, the Organization has failed to name the proper

Claimant. Numerous prior awards on this Division have held that the essence of such a claim by the Organization is for the alleged violation of the Agreement and that the claim on behalf of any individual Claimant is merely incidental. The fact that the particular claim might have been submitted on behalf of other employes having more seniority than the named Claimant is of no concern to the Carrier. (Awards 1646, 5195, 10575 and 10874.)

The instant dispute will be determined upon its merits and the fundamental issue is whether or not the Carrier violated the effective Agreement between the parties by failing to award an assistant foreman position to the Claimant who was senior to the successful applicant.

The Organization asserts that the Carrier violated the Agreement when it assigned a junior applicant to the position in question without due consideration of the qualifications possessed by the Claimant as required by Rule 47 (b), which is as follows:

"RULE 47

(b) Employes covered by this Agreement who possess the necessary qualifications to plan, direct, lead, regulate and coordinate the work of other employes will be given consideration for promotion to positions in the foreman class. When two or more employes do possess the necessary qualifications (referred to in the preceding sentence of this paragraph) the senior employe in the successive lower classes, specified in Rule 34 (e), shall be selected for promotion to the foreman class."

In support of its position, the Organization submitted into evidence a resume of the Claimant's experience which, in part, states that since 1946 he has worked as a leading signalman on two occasions; as acting assistant foreman on one occasion and, in addition, has had wide and diversified experience in correcting signal failures over the entire system of the Carrier. Moreover, the record discloses that since September 1959, the Claimant has been assigned to a position of Leading Signalman which by definition includes certain supervisory duties (Rule 2 (b) of the effective Agreement).

The Carrier contends that it carefully considered the qualifications of the Claimant for the assistant foreman position, as well as those of other senior applicants and found that none of them possessed the necessary qualifications. In this connection the Carrier points out that during a prior dispute between the parties, which it considers to be controlling in this case, it proposed that the parties prepare an examination to determine the qualifications of applicants for such positions. This proposal was rejected by the Organization at that time and the position of the Carrier was upheld in our Awards 11121 to 11124 inclusive.

It is well established under prior awards of this Board that in agreements of this nature, the Carrier has the right to determine the necessary qualifications of its employes and that the Board will not substitute its judgment for that of the Carrier unless it is shown that such determinations were biased, arbitrary or capricious. (Awards 10584, 10459, 10403, 10345 and others.)

In the instant dispute, the Carrier primarily relies on previous awards involving the same issue, parties and rules under similar circumstances. Awards 11121-11124 inclusive (Dolnick). As before, the Organization has offered evidence concerning the experience and work assignments of the

Claimant in support of his qualifications for the position in question, but has submitted nothing of probative value to support its assertion that the action taken by the Carrier was biased, arbitrary or capricious.

It is the opinion of the Board that these recent decisions are not palpably wrong and were applicable to substantially similar factual situations. Under the doctrine of stare decisis, we find these prior awards effecting the same issue controlling and the claim must be denied. (Awards 11336, 11449 and 11788.)

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

That the parties waived oral hearing;

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 Carrier did not violate the Agreement.

AWARD