(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and Station ( Employes PARTIES TO DISPUTE: (Chicago, Milwaukee, St. Paul and Pacific ( Railroad Company

1. Carrier violated and continues to violate the Clerks' Rules Agreement in Seniority District No. 55 when it unjustly treated employe Karen A. VOlkman by failing to award her Secretary Position 23630 and in lieu thereof awarded the position to a junior. employe:

 2. Carrier shall now be required to assign employe K. A.. Volkman to Secretary Position No. 23630 and give her a seniority' date in District No. 55 as of April 8, 1974.

 3. Carrier shall now be required to compensate employe K. A. Voliman the difference in rate of pay of Position 23630 and that of the position assigned to for each workday retroactive to April 8, 1974, and for all subsequent days until the violation is corrected, including continuing payment if the position is assigned permanently to the junior employe.

 4. Carrier shall now be required to pay seven percent (7%) interest compounded annually on such difference in rate until such time as claimant is made whole.

 OPINION OF BOARD: Claimant is regularly assigned to Stenographer _
 Position No. 50240 in the Material Division,
 Seniority District No. 118, where she holds a clerical seniority date
 of March 16, 1970.

 In its Bulletin No. 1, dated March 18, 1974, Carrier advertised a vacancy on Secretary Position 23630 in District No. 55 due to a maternity leave. Carrier determined that a shorthand speed of at least 80 WPM was required to perform the duties of this position. Claimant and four others submitted applications. A11 were given a shorthand test,


and three of the five passed the test. The position was awarded to the senior of the three who passed.

 Although Claimant failed the test, she asserts that she should have been assigned to this temporary vacancy, because she was senior to the individual who was assigned.

 Petitioner cites the following rules as being applicable to the instant case:

                    "RULE 7 -- PROMOTION


          Employes covered by these rules shall be in line for promotion. Promotion shall 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 the new position or vacancy where two or more employes have adequate fitness and ability.


              RULE 8 -- TIME IN WHICH TO qUALIFY


          (a) When an employe bids for and is assigned to a permanent vacancy or new position he will be allowed thirty (30) working days in which to qualify and will be given full cooperation of department heads and others in his efforts to do so. However, this will not prohibit an employe being removed prior to thirty (30) working days when manifestly incompetent. If an employe fails to qualify he shall retain all seniority rights but cannot displace a regularly assigned employe. He will be considered furloughed as of date of disqualification and. if he desires to protect his seniority rights he must comply with the provisions of Rule 12(b).


          (b) An employe voluntarily relinquishing his permanent position cannot displace a regularly assigned employe but will be considered furloughed as of date of relinquishment and, if he desires to protect his seniority rights, must comply with the provisions of Rule 12(b).

                      Award Number 21385 Page 3

                      Docket Number CL-27131


          "The provisions of this Rule 8(b) apply only during the thirty (30) working day qualification period referred to in Rule 8(a) or in a case where the physical condition of an employe so changes as to make him physically unable to continue on the assignment. Exceptions may be made in meritorious cases.


                                at * ~r t


                RULE 11 -- FILING APPLICATIONS-

                OTHER SENIORITY DISTRICTS


          Employes filing applications for positions bulletined on other seniority districts will, if they possess sufficient fitness and ability, be given preference on a seniority basis over non employes and/or employes not covered by these rules."


The Board finds that under Rule 7, an employe is not entitled to a position unless such employe has sufficient fitness and ability to fill the position. In this regard, the Hoard has consistently held that Carrier may use tests or examinations as being determinative of fitness and ability (Awards 18875, 18774, 18462, 17192, 15626, 14040, 7037, 5025, 5006, 4918 and 3273).

        Furthermore, under the consistent decisions of this Hoard, - _

Carrier's decision as to fitness and ability cannot be disturbed
 unless proved to have been made arbitrarily or capriciously. Such
 burden of proof rests squarely on the Claimant. (Awards .21246,
 21243, 21119, 21009,.20964, 20569, 20361 19404 and 19129).

 Claimant has not-met this burden. A thorough and extensive review of the complete record developed on the property, as well as the arguments of the parties, reveals that Carrier's decision not to accept Claimant's application for the position was based on the fact that Claimant could not pass a speed test of 80 WPM. Consequently, Carrier's decision was neither arbitrary nor capricious, and the claim must be denied.
                    Award Number 21385 Page 4

                    Docket Number CL-21131


        FINDINGS: The Third Division of the Adjustment Hoard, 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.


                    A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: ~'
 Executive Secretary

 Dated at Chicago, Illinois, this 28th day of January 1977.
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FEB 23 977

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