ment of the Carrier will not be questioned without a showing of abuse. No abuse was shown or argued on the property.

The Claim should be denied.

OPINION OF BOARD: It is contended in this claim that Carrier violated the basic Agreement and the Memorandum of Agreement dated September 12, 1961, by selecting an employe with less seniority than Claimant Mastandrea to fill the advertised position of Tariff Compilation Clerk in the Rates and Division Department of Carrier's Traffic Office. Carrier denies any violation.

Prior to September 12, 1961, the Rates and Divisions Department positions of Tariff File Clerk and Tariff Compilation Clerk were excepted from the Agreement to the extent that these positions were not subject to the advertising rules, and the occupants thereof could not be displaced by employes with greater seniority. Claimant Mastandrea was assigned as Tariff File Clerk and M. E. Sullivan was assigned as Tariff Compilation Clerk at that time. Sullivan had held the latter position from April 1, 1958 until he entered Military Service and in 1961 he displaced another employe from this position upon returning from the service. Immediately prior to becoming a Tariff Compilation Clerk in 1958 Sullivan worked six months as a Tariff File Clerk. Claimant Mastandrea had been assigned as a Tariff File Clerk since November 16, 1960. For approximately 5'/z months prior thereto he worked as a File Clerk in the Traffic Office. He previously worked in the Transportation Department for almost seven years, first as a Caller and then as a Checker.

The Memorandum of Agreement which the parties signed on September 12, 1961 provided in Section 6 that the positions of Secretary (Maintenance of Way), Tariff File Clerk (Traffic-Rates) and Tariff Compilation Clerk (TrafficRates) were removed from their partially excepted status and "will be advertised". Pursuant to this provision the subject Tariff Compilation Clerk position was advertised and three employes bid for the position-Claimant Mastandrea, M. E. Sullivan and 7. W. Zarvis. Carrier interviewed these applicants and gave them a written test. The Carrier thereafter selected Sullivan as the successful bidder, although Zarvis possessed the greatest seniority and Mastandrea was the next most senior of the three men. No formal claim was filed by Zarvis.

Rule 26(b) of the basic Agreement declares:

"Employes covered by this Agreement shall be in line for promotion. Promotion shall be based on seniority, fitness and ability; fitness and ability being sufficient, seniority shall prevail, the Management to be the judge, subject to appeal."

Rule 33(a) states:

"Employes entitled to advertised positions shall be allowed thirty (30) working days, with full opportunity in which to qualify, and failing, shall retain all their seniority rights, may bid on any advertised positions, but shall not displace any regularly assigned employe.

The Organization contends that the September 12 1961 Memorandum of Agreement was executed only after the parties reached an understanding that the positions placed under the advertising rules would be so advertised as to assure that senior employes were not furloughed while junior employes worked. Carrier denies that such an understanding was arrived at. We are of the view

that we must apply the Memorandum of Agreement as written. It is the clear intent of Section 6 of this instrument that the positions therein cited shall be advertised and filled in accordance with the procedure set forth in the basic Agreement.

Since under the express language of Rule 26(b) it is the proper function of the Carrier to judge an employe's fitness and ability for a position to which promotion is sought, the Carrier may require a test to assist it in determining fitness and ability. (Award 4918) We do not agree with the Organization's contention that the use of tests was a prejudicial act of the Carrier because tests had not been given to employes being considered for the Tariff Compilation Clerk position when it was partially excepted from the Agreement. Tests previously had been administered to applicants for various other positions covered by the Agreement.

The evidence presented does not support the conclusion that Carrier's selection of Sullivan as the successful applicant, instead of Claimant Mastandrea, was made in bad faith, or was arbitrary or capricious. The test given to all three applicants was related to the requirements of the position and was not otherwise unreasonable. Claimant's performance on this test was unsatisfactory, whereas Sullivan displayed sufficient fitness and ability. Since claimant's fitness and ability for the position was properly judged to be insufficient, his greater seniority (as compared with Sullivan) could not prevail per Rule 26(b). Inasmuch as claimant was not entitled to the advertised position, the thirty day qualifying period provided in Rull 33 (a) did not apply to him.

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

That the parties waived oral hearings;

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 Carrier did not violate the Agreement.

AWARD