(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

File 14-5-2
 promoted to 611-1740-~0-14),cognition of his seniority and request (System

 (2) The Carrier now establish s seniority date of August 8, 1979 as B&B Mechanic for Claimant Whatley and compensate him for the difference in the rate he receives as B&B Helper and the rate of B&B Mechanic begin August 8,, 1979 continuing until he is allowed to fill position of B&B Mechanic."

 OPINION OF BOARD: Claimant was a B & B Helper with a seniority date of
 October 4, 1978· On August 8, 1979 another B & B Helper with a seniority date of October 26, 1978 was promoted to B &--B Mechanic. -Both helpers had complied with Article III., Section 1 of the Agreement by making their desire to be promoted known to their Superintendent. Claimant was denied the promotion on the grounds that he dad not merit promotion because of his ability. Additional correspondence between the Carrier and the Organization further revealed that Claimant had not demonstrated his fitness and ability and the Carrier had not been able to fully evaluate his fitness and ability because of excessive and lengthy absenteeism.

 Claimant countered that decision of the Carrier by submitting three letters two from B & B Mechanics who served as Relief Foreman and one from a B & B Faremaa. These letters stated that is the opinion of the writer the Claimant was qualified far promotion to B & B Mechanic.

 It is a long established principle that the determination of fitness and ability is a function of the Carrier. After this determination has been made the burden of proof is on the Claimant to establish that the reason articulated by the Carrier the C:Iaim6at has the requisite fitness and ability to perform the job. See Awards 12394s 12338s 32013 and a boat of others.
establish his fitness and ability. The Carrier's response was that it was
 the province of the General B & B Foreman and Assistant B & B Foreman to de
 texmine the fitness and ability of an employe who sought promotion pursuant
 to Article Ilij, Section 1 of the Agreement. It was admitted that recommendations
 of Foreman were considered but nowhere is 1t stated that such-recamendations
 world be determinative.
 Award Number 23860
 Docket Humber MW-23969

 Page 2

 The record reveals a long history of absenteeism on the part of the Claime.at. This record is entirely consistent with the statement of the (terrier that Claimant had not demonstrated fitness and ability and that the Carrier had bees unable to evaluate the same. Letters from colleagues who had limited oppor not sufficient to prove that Claimant demonstrated the requisite fitness and ability. A further claim was made that Claimant bad long years of experience before he joined th not relevant to the burden of proof because Carrier cannot be held to know what these outside duties were or hour well he performed them. The Carrier can only observe Claimant's performance on its property.

 Carrier contends is its Rebuttal Submission that Claimant had not followed the dates of Articles I>Z, Section 1 of the Agreement is that he had not submitted his request for promotion in writing to the Carrier. This was not raised i was not utilized as a reason to deny the claim. If the request was not in writings this Board holds that the defense was waived by the terrier and will not now be considered.

 This Board holds that in view o! all the evidence it will not substitute its judgment for that a! the (terrier.

That the parties waived oral hearing;

 That the Carrier sad. the Employer involved in this dispute are respectively Carrier and Employer within the meaning of the Railway Labor Aety as approved June 21.. 193111

 That this Division of the Adjustment Hoard has jurisdiction over the dispute involved herein; end

 That tile Agreement was not violated.

 A W A R D
Claim denied.

 ATTEST: Acting Executive Secretary

 Rational Railroad Adjustment Board

 By
 -.dtbdemarie Breach - Administrative Assistant

 Dated lot Chicago., Illinoiaj, this 28th day of April..19&-~- -
HATIOHAL RAILROAD ADJUSMENT BOARD
 By Order of Third Division


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