(Brotherhood of Railway, Airline and Steamship Clerks, ( ,Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: ( (Southern Pacific Transportation Company (Pacific Lines)

(a) The Southern Pacific Transportation Company violated the Clerks' Agreement when it unjustly disqualified Mrs. E. E. Whetstine (E.E. Yost) from Traffic Service Clerk Position No. 540; and,

 (b) The Southern Pacific Transportation Company violated role 46 of the Agreement when it failed to give the Division Chairman a copy of decision following investigation; and,

 (c) The Southern Pacific Transportation Company violated Rule 48 of the Agreement when it failed and refused to give Mrs. Whetstine a copy of the transcript of investigation; and,

 (d) The Southern Pacific Transportation Company shall now be required to allow Mrs. whetstine the difference in compensation on Positions 539 or 540 whenever she September 29, 1972 and each work day thereafter until disqualification is lifted.

 OPINION OF BOARD: Claimant entered Carrier's service as a clerk on Feb
 ruary 1, 1966, in the General Office Building, San
 Francisco, and transferred to the Oregon Division as a clerk on June 16,
 1970.

 Claimant occupied a position on the Eugene, Oregon, Clerical Extra Board, and on occasions filled vacancies on Position No. 539, Diversion Clerk and Position No. Traffic Office at Eugene. During her occupancy of these two positions, Carrier alleges that Claimant on four separate occasions was discourteous and argumentative with Carrier's customers. Moreover, Carrier argues that while these shortcomings were discussed with Claimant as they occurred, it was to no apparent avail. Consequently, after Claimant's last alleged outburst to a customer (who wa memorandum on September 29, 1972, that Claimant was disqualified from further service on Positions N
                  Docket Number CL-21113


On October 4, 1972, the Agent at Eugene conferred with Claimant on the contents of the personal record memorandum of September 29, 1972, outlining the reasons for her disqualification from further service on Positions Nos. 539 and 540. On November 5, 1972, Claimant filed a displacement on Position No. 540, of her previous disqualification.

 Subsequently, on November 17, 1972, Claimant requested an investigation under the provisions of 24 and 28, 1972, the disqualification of Claimant for service on Position No. 540 was affirmed by Carrier in letter dated December 7, 1972.

 Claimant thereafter exhausted the appeal procedures up to and including the highest officer designated by Carrier to receive such claims, the latter declining the claim, and affirming the disqualification of Claimant. The matter is now properly before the Board.

 The rules cited by the parties as being applicable to the instant case are as follows:

                      "RULE 26

                  SENIORITY DATUM


        (a) Seniority begins at the time employe's pay starts on the seniority district and on the roster where service is first performed. Where two or more empl enter upon their duties at the same hour on the same day, seniority rank of such employes shall be determined by agreement between the employing officer and the Division Chairman or Chairmen.


        (b) An employe voluntarily leaving the service or who has absented himself, except in case of illness or other physical disability, without proper leave of absence, which must be in writing if in excess of sixty (60) days, shall forfeit his accumulated seniority; if he re-enters the service he shall be considered a new employe. has been dismissed and request for reinstatement is not made within sixty (60) days from date of notice of dismissal, will, if reinstated, be considered a new employe unless restoration of seniority previously held is agreed to between the carrier and the organization."

          Award Number 21328 Page 3

          Docket Number CL-21113

          "RULE 27


PROMOTIONS, ASSIGNMENTS, DISPLACEMENTS

 Employes covered by these rules shall be in line for promotion. Promotions, assignments and < be based on seniority, fitness and ability; fitness and ability being sufficient, seniority shall prevail.

 NOTE: The word 'sufficient' is intended to more clearly establish the right of the senior employe to bid in a new position or vacancy, or to.displace a junior employe, where two or more employes have adequate fitness and ability. In such cases the senior employe will be awarded the position unless it is obvious he cannot qualify. Employes shall be given cooperation in their ef qualify."

              "RULE 34


            SHORT VACANCIES


(b) New positions or vacancies of thirty (30) calendar days or less duration, shall be filled, whenever possible, by the senior qualified Guaranteed Extra Board employe who is available and who has not performed eight (8) hours' work on a calendar day; a Guaranteed Extra Board employe will not be considered as being available to perform further work on vacancies after having performe or forty (40) hours of work at the straight time rate in a work week beginning with Monday, except when such Guaranteed Extra Board employe secures an assign under the provisions of Rule 33 or returns to the Guaranteed Extra Board from a position to which he in which event he shall be compensated as provided for in Rule 20, Sections (b) and (c).
            Award Number 21328 Page 4

            Docket Number CL-21113


NOTE; 6. Guaranteed Extra Board employes will be advised of the various known vacancies available to them at the time called and be allowed in seniority turn to respond to the one of their choice provided the starting time thereof is within the eight-hour period commencing with the start of such calling period established pursuant to Article VII, Section I(d) of the Agreement of September 16, 1971. To the extent practicable, employes will also be notified of vacancies which arise after the time initially called and permitted to change choice to one of the latter vacancies or to a vacancy choice relinquished by a senior employe in application of this agreement.

 If a Guaranteed Extra Board employe misses a call during calling period established pursuant to Article VII, Section I(d) of the Agreement of September 16, 1971, on a day on which he has not performed service, he will not be considered available for service on that calendar day. If the Guaranteed Extra Board employe has performed serv call and the call missed during calling period referred to herein is for service on the following calendar day, he will not be considered available for service on such following calendar day.

 Calendar days on which Guaranteed Extra Board employes are not available by reason of missing call, as provided herein, or laying off, as provided in Rule 34(d), will be counted in computation of five days and 40 hours as referred to in Rules 20 and 34 and such time will be deducted from the 40 hours per week guarantee provided for under Article VII of the Agreement of September 16, 1971.

          "RULE 46

          DISCIPLINE AND INVESTIGATION


An employe who has been in service more than sixty (60) days or whose application has been formally approved shall not be disciplined or dismissed without investiga this Agreement. He may, however, be held out of service pending such investigation. The ixrvestigati fifteen (15) days of the date when charged with the offense or held from service. A decision will be rendered to the employe within fifteen (15) days after the completion of investigation, copy of which decision will be furnished to the Division Chairman.
                  Award Number 21328 Page 5

                  Docket Number CL-21113


        Investigations and hearings shall be held whenever possible at home point of employes involved. They will also be held at such time as not to cause employee to lose rest or time, whenever possible to do so.


                        "RULE .48

                      TRANSCRIPT


        A transcript of the evidence taken at the investigation or on the appeal shall be furnished to the employe and his representative, who shall have fifteen (15) days in which to offer evidence in rebuttal."


                        "RITLE 50

                      GRIEVANCES


        An employe who considers himself unjustly treated, shall have the same right of investigation and appeal as provided in Rules 46, 48 and 49 if written request is made to his superior within fifteen (15) days of the cause of complaint."


Claimant alleges that Carrier is guilty of procedural violations of Rules 46 and 48, while Carrier argues that Claimant is guilty of a procedural violation of Rule 5
After a thorough review of the record, the Board finds that the alleged procedural violations committed by both, Carrier and Claimant either were not properly raised on the property and/or were non prejudicial and would not have supported the claim in any event.

 Therefore, the Board must turn to the merits to dispose of .this case.

 Claimant argues that she was unjustly disqualified by Carrier from Traffic Service Clerk Position No. 540. Carrier states that under Rule 27, it must judge the "fitness and ability" of employes, and that Carrier's judgment on that matter cannot be upset by this Board unless Claimant can prove that in making said judgment, Carrier was arbitrary or capricious.

 In construing rules such as Rule 27 herein involved, this Board has consistently adhered to the principle that whether an employe possesses sufficient fitness and ability for a position is a matter exclusively for the Carrier to determine, and such a determination once made will be sustained unless it appears tha 16871, 16841, 15494, 14813, 13759, 12669, 11572, 5966, 4687, and 2692).
                  Award Number 21328 Page 6

                  Docket Number CL-21113


Once Carrier has determined that Claimant lacks sufficient fitness and ability, Claimant has the burden of coming forward with evidence of substantial probative value to support her contention as to fitness and ability, and to the arbitrariness of Carrier's action. (See Awards 21243, 20361, 19129, 16871,,15494, 6143, and 4687).

 Claimant has failed to sustain this burden. We believe that Carrier's decision was made in good,faith upon sufficient supporting evidence, and its decision as to fitness and ability was not biased, arbitrary, nor capricious. Thus, Carrier's determination will stand, and the claim will be denied.

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


        That the parties waved 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.


                      A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


        ATTEST: Executive Secretary


        Dated at Chicago, Illinois, this 30th day of November 1976.


                                      D C Z O