(Brotherhood of Railway, Airline and Steamship Clerks,
 ( Freight Handlers, Fagresa and Station Esployes
 PARTIES 1b DISPUTE:
 (The River Terminal Railway Company

1. Carrier violated the effective Clerks' Agreement when it failed to afford Mr. C. Scsggs a promotion to a Yardmaster position in preference to a junior employe.

 2. Carrier shall now compensate Claimant C. Scaggs for eight (8) hours' pay at the pro rata rate of a Yardmaster position commencing on November 16, 1978, and continuing for ca .'_:. and every day thereafter that junior employe J. Carty is used as a Yardmaster.

 OPINION OF BOARD: The issue which is central in this dispute is Organi
 zation's contention that Carrier's appointment of a
 junior employe to a vacant Yardmaster's position on or about November 16,
 1978, was in violation of Supplement No. 5 of the parties' applicable Col
 lective Bargaining Agreement. In support of its position organization of
 fers that Claimant's seniority date is September 6, 1957, whereas appointee's
 seniority date is March 8, 1962. Organization further contends that Claimant
 is qualified and can perform the duties required of said position and that
 Carrier's failure to appoint Claimant was simply because "he (Claimant) is an
 employe who demands that Carrier comply with the contract". Thus Organizatioc
 s:mmurizes that "... Carrier has clearly acted in an arbitrary sad capricious
 manner ..." and that the instant claim should be sustained.

 In addition to the above, Organization also argues that Carrier merely asserts that Claimant is unqualified to perform the duties of Yardmaster but thereafter offer made when the case was presented "on the property", but instead were raised for the first time when the dispute was appealed to this Board.

 Carrier's position, stated simply, is that Claimant was "... given the same fair and unprejudiced consideration" as was given to all other applicants and that Claimant
                      Docket Number CL-23258


fictions for :he oosition of Yardmaster". Additionally, Carrier argues that ''_3upplement No. 5 gives management the explicit right to be the ,judge of the fitness and ability of the applicant" and further "(T)hat Claimant's work record and performance has demonstrated to management his inability to work harmoniously with supervision and fellow employees".

 The Hoard has carefully read and studied the complete record in this dispute and is convinced that Organization's position herein is correct and, therefore, must be sustained.

 From the outset it must be noted -.hat, as per Organization's contention, a significant portion of t both its Submission and Rebuttal Brief was not offered when the issue lifts first presented on the property, and, for obvious reasons, such offerings will not now be entertained by this Board.

 Turning next to the merits portion of this dispute, given the facts of record as presented herein, the Board is unable to conclude that Carrier's consideration of Claimant's qualifications was "fair and ~xaprajudiced" as is required by there can be no dispute that said Supplement does empower "(M)anagement to be the judge of the fitness and ability of the applicant', by the same token, such right may not be exercised "... in an arbitrary and capricious manner" (Second Division Award 7701). Regardless of the specific motivation which might have led to the position of Yardmaster, Carrier's allegations regarding Claimant's qualifications or lack thereof either are not supported in the record or indeed appear to be predicated upon the cost trivial of incidents. Moreover, claimant's twenty-two ( with his numerous promotions and his apparently unblemished work record (particularly the latter) is sufficient to rebut Carrier's principal contention that Claimant "... has demonstrated his inability to work harmoniously with members of supervision and fellow employees argumentative attitude is unsuitable for the position of Yardmaster ..." (Third Division Awards 10424, 20702 and 21353).

        FnmIM8: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


Mat the (terrier and the &inployes involved in this dispute are respectively Carrier and Employee within the meaning of the Railway
 Award Humber 23541
 Docket Humber (L-23258

 Labor Act, as approved dune 21,, 1934;

 Page 3

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


A N A R D
Claim sustained..

 ATTEST:

 Hcecntive Secretary

 NATIONAL RAILROAD ADJUSTMENT BOAR
 By Order of Third Division

 Dated at Chicago, Illinois, this 26th day of February 1982.