(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood
 of Railroad Signalmen on The Long Island Rail Road that:

 (a) Carrier violated the Signalmen's Agreement, particularly Rule 47(b), in allowing Signalman Kearney to work as a temporary Asst. Foreman instead of assigning a senior man, C. P. Curto, to the vacancy of said position from August 9, 1971, through August 20, 1971.

 (b) Carrier now pay to Communication Tech. C. P. Curto the differential between Communication Tech. and Asst. Foreman's rate additional pay for 80 hours as a consequence of the violation.

 OPINION OF BOARD: The dispute herein involves the contention that
 Claimant, a Signal man (Communications Technician), should have been assigned to an eleven day vacation vacancy as assistant foreman, which position was assigned to another Signalman who had less seniority. Rule 47 (b) is most directly involved; that rule provides:



The issue in this dispute is primarily one of fitness and ability, which has been the subject of numerous Awards of this Board. Under these awards Carrier has the right to determine the fitness and ability of an employe for a position or promotion, which will not be disturbed by the Board unless it appears that the decision was arbitrary or capricious. Once an employe's lack of qualification has been determined by Carrier, Petitioner has the burden of establishing the employe's qualifications with probative evidence in order to demonstrate the arbitrariness and impropriety of Carrier's action (see for example Awards 5802, 15494 and 19129).
                  Docket Number SG-20174


In this case, during the handling on the property, Petitioner asserted repeatedly that Claimant has been assigned to positions of assistant foreman previously and was qualified to handle the position in question. Carrier responded by stating, at the final conference on the property, that Claimant had served as an assistant foreman in cable gangs only and not in construction gangs, which is the position in dispute. Following the conference with Carrier's highest officer, the organization submitted a letter in which it set forth certain dates, five days in 1968 and three days in 1969, during which periods it alleged that Claimant had served as assistant foreman in construction gangs. Carrier argued that the data presented came after the termination of the handling on the property and was inadmissible. Additionally, in its rebuttal statement, Carrier denied the statement made by Petitioner in the letter alluded to above, and insisted anew that Claimant has not had the experience attributed to him by Petitioner and was not qualified. We do not find that the belated letter from Petitioner contested by the Carrier constituted probative evidence establishing Claimant's qualification. No other data was subm this dispute on the property. We must conclude that Petitioner has not met its burden of proof and we may not disturb the conclusion with respect to Claimant's fitness and ability determined by Carrier.

 Based on our conclusion with respect to the merits, we do not deem it necessary to deal with the other issues raised by Carrier.

        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 Agreement was not violated.

                    Award Number 20569 Page 3

                    Docket Number SG-20174

                    A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADTI)S. TMEPT HOARD

                          By Order of Third Division


ATTEST:
          Executive Secretary


Dated at Chicago, Illinois, this 30th day of December 1974.