(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Agreement was violated when Assistant Foreman D. D. LaGrange was not promoted to foreman on March 14, 1977 (System File 1-P-41-4/11-2000-40-20).









              (c) allow Claimant D. D. LaGrange the difference between the extra gang foreman's rate and the rate at which the claimant has been paid beginning with March 14, 1977 and continuing forward until such time as he is promoted to and assigned as a track foreman."


OPINION OF BOARD: Claimant, employed initially as a Trackman in March 1976,
 was promoted to Assistant Foreman on March 15, 1977. Some
 three weeks later, under date of April 6, 1977, Claimant mailed a note to Carrier's
 Superintendent at Fort Madison, Iowa, reading as follows:

                "I would like to establish my foreman's rights as track foreman next available opening for promotion. My starting date is March 26, 1976."


                Carrier's Division Engineer replied to Claimant on April 11, 1977,'as follows:

                        Award Number 2?094

                        Docket Number MW-22673 Page 2


                "This is in regard to your memo of April 6 requesting to establish your seniority as foreman. Promotion to foreman's position is at the option of management, and you will be informed when it is considered by management that you are capable of assuming this responsibility."


On the basis of the foregoing, the General Chairman on May 11, 1977 filed the present claim alleging that Claimant's contractual rights were violated. Failing resolution on the property the claim was appealed to this Board.

 Review of the record shows no basis in fact or contract to support the claim. To prevail in such a claim, an employe must demonstrate the Carrier's assessment of his fitness and ability of the desired promotion was arbitrary, unreasonable or capricious. Award 3-21328 and many others cited therein. Claimant also has to demonstrate by substantial probative evidence that he indeed possessed the requisite fitness and ability. The only evidence originally relevant to that issue is Claimant's successful completion of a Student Foreman Training Program. Standing alone, however, that showing falls far short of carrying the burden of persuasion which the Organization bears in this case. The claim must be dismissed for failure of proof.

        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 alleged violation has not been proven.


                        A W A R D


        Claim dismissed.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


ATTEST:
          Executive Secretary


Dated at Chicago, Illinois, this 15th day of December 1980.