Brotherhood of Maintenance of Way Employee PARTIES TO DISPUTE:

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

 (1) The Agreement was violated when positions of miscellaneous machine operator were awarded to tracl®ea junior to Trachea Charles R. Mitchell (system File 11-174o-4o-1919-P-381-4).

 (2) The claimant shall be allowed the difference between what he earned as a trackman sad what he should have earned as a miscellaneous machine operator if he had been awarded a miscellaneous machine operator's position beginning October 15, 1979 and to continue until the violation is terminated."

 OPINION OF BOARD: This is a fitness and ability dispute in which Carrier
 promoted junior employee to the position of Miscellaneous Machine Operator instead of Claimant. Claimant, a Trachea, applied for the position of Miscellaneous Machine Operator is September of 19797 he had previously attempted to secure the sate position is 1977 but had been turned down. There is no question but that at least one employe with less-seniority than Claimant was indeed promoted to the position in dispute.

 Petitioner alleges that Claimant was unquestionably the most senior employe applying for the position and that Carrier should have given him the opportunity to attain the necessary qualifications and to demonstrate his ability. Further, it is contended that Carrier has not presented the necessary evidence to support i fitness and ability to handle the job.

 Carrier maintains that Claimant failed to take the written examination which was a prerequisite for further consideration for .the particular promotion, and is fact has never applied for that examination. In addition, Carrier presented written assessmen opinions of three supervisors with respect to his potential as a Machine Operator. The supervisors' conclusions were that Claimant was slow in both physical and mental reactions in his Trackman's position and could not safely handle the Machine Operator's position.

 In disputes such as this, it is well established tha_,t once carrier has presented a rationale for its conclusion that as employe is not qualified for a zerticular position, it is incumbent on Petitioner to present evidence to establish Claimant's ability (see for instance Award 11?79, 10345 and many others). In the absence of a showing that Carrier's conclusion was arbitrary or capricious and


claim must fail. 7n this dispute there has been no evidence presented to establish Claimant's ability to perform the tasks of the macro skilled position. Hence. Petitioner has failed to bear its burden of proof and the claim must be denied.



That the Carrier sad the Enployes involved in this dispute are respectively wrier 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



        Claim denied.


                        NATIONAL RAILROAD ADTJS'L~ENT BOARD

                        By Order of Third Division


                                        c.GEl',iED\.·.

ATTEST: Acting Executive Secretary `~"
 National Railroad Adjustment Board
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 CSi .
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By _ '\^o Oiiice_~%
 Rosemarie Branch - AdainistrativE Assistant
 5

 Dated at Chicago, Illinois., this 14th day of December 1962.