(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Burlington Northern Inc.

(1) Carrier violated the Agreement between the parties when on May 14, 1973, it denied senior employe Mr. J. G. Baird the right to displace junior employe Mr. W. S. Young from position titled Assistant Chief Clerk, Superintendent's Office, Portland, Oregon.

 (2) The Carrier violated the Agreement between the parties when it failed to timely render a decision in connection with a hearing that was held on May 23, 1973. Agreement was further violated when the Carrier failed to timely decline a claim that was filed under date of May 18, 1973.

 (3) The Carrier shall be required to compensate Mr. J. G. Baird for a day's pay at tae rate of $43.45 per day for May 15, 16, and 17, 1973, and for each and every day thereafter until the violation is corrected.

 OPINION OF BOARD: On May 14, 1973, Claimant, having been displaced from the
 position of Rate and Transit Clerk No. 8, filed his intent
 to displace the incumbent in the position of Assistant Chief Clerk, Superin
 tendent's Office, Portland, Oregon. On the same date Claimant was notified by
 the Superintendent that his displacement was disallowed since his record indi
 cated he had neither the background narqualifications required for the position.
 On May 16, 1973 Claimant advised the Superintendent that he was placing himself
 on the Extra List under protest. On May 18, 1973 the Organization, through the
 Local Chairmen, wrote to the Superintendent advising him that his decision to
 deny the position to Claimant was unreasonable, arbitrary and an abuse of dis
 cretion; that a hearing was requested in accordance with Rule 58; and that an
 interim Claim was being filed in behalf of Claimant. The hearing was scheduled
 and held on May 23, 1973. On August 5, 1973 Petitioner wrote to the Superin
 tendent requesting that the Claim be allowed as presented on the grounds that
 the hearing had demonstrated that Claimant had the fitness and ability which
 would qualify him for the position in question and further that the Organiza
 tion had received no information as to the outcome of the hearing or denial
 of the Claim. On August 22, 1973 the Superintendent responded as follows:









Rule 58 provides that an employe who considers himself unjustly treated shall have the same right of hearing and appeal as provided for in Rule 56. Rule 56, dealing with Investigations and Appeals, provides inter alia in Paragraph A;

Appendix C of the Agreement dealing with Time Limits on Claims and Appendix D concerning Local Handling of Claims both provide that the Carrier must disallow a claim within sixty ...the claim or grievance shall be allowed as presented ...."

 Both parties hereto have presented certain information and/or arguments with their submissions t that new evidence and argument not raised during the handling on the property is improperly presented to this Board; such material will not be considered in the resolution of this dispute.

 With respect to the matter of whether Claimant should have been awarded the position, the Carrier had specified in the bulletin for the position that one of the ele a comprehensive knowledge of operating and non-operating labor agreements". Claimant admitted both during and prior to the hearing that he had no knowledge of the duties involved in the position and wished to learn. His prior background with Carrier had be of Carrier and did not involve any exposure to the operating rules of the various


crafts, such as crew calling might have afforded. The Agreement provides (in Rule 7, which is applicable) that seniority shall prevail only when fitness and ability are suff that whether an employe has the requisite fitness and ability for a position is a matter for the Carrier to determine exclusively; such determination will be overturned by this Board only when the evidence indicates that the action of Carrier was arbitrary or capricious. We also note that certain awards have held that it is not necessary for an applicant to be immediately qualified to assume all the du training (Award 5348 for example); however there must be a reasonable probability that the employe w nothing in the record of the hearing or the other handling on the property which indicates unjust treatment or an arbitrary or capricious judgment on the part of Carrier. We are not permitted to substitute our judgment for that of Carrier in disputes of this type (Award 20878 among others) under our limited review authority.
inal Claim or report to the Claimant on the outcome of the hearing in conform
 ity with the rules on time limits. Carrier argues that in the absence of any
 notification after the hearing and any change in his status, it must have been
 obvious to Claimant that he had failed to meet his burden of proving that Car
 rier's decision in rejecting his displacement was in error; ergo, no formal
 notification was required. At the same time Carrier argues further that the
 original claim was premature and should only have followed the hearing; it
 too did not warrant response. We do not agree with Carrier's position or logic
 since it is quite clear that Carrier's reasoning would foreclose the filing
 of any claim or appeal by inaction on its part. We find that Claimant was
 damaged by Carrier's failure to either respond to the original Claim within
 sixty days or render a decision within twenty days after the completion of the
 hearing. However, Carrier's letter of August 22nd, supra, served both as a
 late denial of the Claim and as a decision with respect to the hearing. Car
 rier's liability under the Time Limits provisions under these circumstances
 has been limited by the National Disputes Cotmnittee decision No. 16 and a
 series of awards following it. For this reason, Claimant should be compensated
 for the period from May 14, 1973 through August 22, 1973 at the rate of
 $43.45 per day, _ _





That the Carrier and the Employes involved in this dispute are respectively Carrier and Dmployes 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



        Past 1 denied;


        Part 2 sustained;


        Part 3 sustained to the extent indicated in the Opinion.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST: 6460
 Executive Secretary

 Dated at Chicago, Illinois, this 12th day of March 1976.