tion and instruction, to the extent that can reasonably be expected by any employe on a new job as she had been given previous to the assignment to Position #191, she herself failed to perform as could reasonably be expected of any employe including herself.

The agreement has not been violated. Mrs. Ecklund is not entitled to pay for time allegedly lost through her own failure and to exercise her rights under the agreement.

OPINION OF BOARD: Claimant was disqualified on Position No. 191 effective at 4:30 P. M. on June 19, 1963. She had bid for and was assigned to Report Clerk-Typist Position No. 191 on May 21, 1963. On June 14, 1963, Carrier's Agent directed her in writing to attend a hearing on June 18, 1963, to discuss her qualifications for that position.

The hearing was conducted by her supervisor, the Agent who stated for the record, as follows:

"Mrs. Ecklund, on May 21st, you were awarded Position #191 in the office of Agent at South Chicago and have now been working that position for four full weeks, and to date I find that approximately only 65% of the work assigned to that position is being completed. The Tonnage Report by Shippers or Consignees has not been started, nor the Tonnage report for destination has had nothing added to it since your assuming this position, At the time you were awarded the position, the Company felt that it was necessary to be extremely tolerant due to the fact that you had been absent on sick-leave for about 16 months. On the morning of May 27th, 1963, 1 asked you to come into my office to discuss your inability to keep up with the work, to which you countered with the statement that did I know that you were an arthritic. It was consequently hoped that the arthritus condition would subside and that we would find an improvement in your typing ability. To date, as stated previously, you have not been able to accomplish this typing of permits and the preparation of the In Transit Report in time to allow you to put forth any effort on the two tonnage reports previously mentioned. In addition, it has been found necessary to have Miss Weeks prepare the May tonnage report, one of the reports to the Bureau of Mines U. S. Govt and on occasion to assist in typing up permits in order to get them out in the required time. Mrs. Ecklund you may have a rebuttal to this statement"

He was the only witness on behalf of the Carrier, but he refused to submit to cross-examination by Claimant's representative. His reply was, "I am not the one being tried for my inability-you may ask Mrs. Ecklund questions." Thus, the Hearing Officer was not only the prosecutor, witness and judge, but as judge he excluded all attempts to question his veracity.

Carrier argues that Claimant was properly disqualified because she was completing approximately only 65% of the work assigned to that position. This may have been so. But the evidence shows that Claimant did everything requested of her in which she was instructed.

There is no complaint about the work which Claimant was doing. When she was asked when she felt she would be able to do all the work attached to the position, she replied, "When I am shown I will be able to accomplish the work." There is also no categorical denial by the Agent that he refused to assist and to explain the work requirements to the Claimant.

The Agent stated that the reason Claimant was not "shown any further reports" was because she was "having considerable difficulty in accomplishing the portion of the work prescribed * * * " To this Claimant testified: "Not any more than anyone else would starting on a new job."

Claimant was disqualified twenty-nine (29) days after she was assigned to the position. Rule 16 provides that employes entitled to bulletined positions are allowed thirty (30) calendar days to qualify. Paragraph (b) of that Rule says:

"(b) When it is definitely determined, through hearing if desiderd, that the employe cannot qualify, he may be removed before the expiration of thirty (30) calendar days " " "" (Emphasis ours.)

The burden of proof is upon Carrier. It is not "definitely determined" from the evidence that Claimant could not have qualified if she was properly and adequately instructed.

Position No. 191 was abolished on December 5, 1963. Claimant is entitled to he compensated for loss of wages resulting from her disqualification on Position No. 191 from June 20, 1963, to December 5, 1963, less any earnings she may have received from other employment during said period.

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 Carrier violated the Agreement.

AWARD