( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE:



1. Company violated the agreement between the parties on Larch 8, 1979, when it refused and failed to properly award Position No. 74, in the Payroll Department to the senior applicant, Clerk Linda Brown.

 2. Company shall now be required to compensate Clerk Linda Brown for the difference in the rate of pay attached to the position she has occupied $68.80 per day, and that of Position No. 74, $69.71 per day, beginning on March 8, 1979, and continuing for each work day, until she is allowed to occupy the position in line with her seniority.

 OPINION OF BOARD: Position No.~74 was posted for bidding under Bulletin No.
 72 in the Payroll Department, Chicago, Illinois. Claimant, a Clerk, with a seniority date of April 15, 1968 made application for the position, but Carrier awarded it to Ms. D. G. Hamilton who had a senior May 72, 1969· Petitioner contends in this case that claimant possessed sufficient fitness and ability for the should have been awarded the position and given a trial thereon as provided by Rules 6 and 10 of the Agreement.

 Carrier, on the other hand, argues that claimant did not possess the necessary fitness and ability, that claimant admitted she did not have the necessary qualifications when bidding for the position, and that the assignment of the junior employ the circumstances of this case.







                    Docket Number CL-23428


        "Rule 10 Qualifying


        (a) An employee awarded a bulletined position who fails to qualify within thirty working days shall retain his seniority rights and will be returned to his former position or status no later than thirty-six hours after removal from the position on which he failed to qualify. Upon return to his former position, all other employees affected thereby will be returned to their former positions or status. If his former position has been abolished or a senior employee has exercised displacement rights thereon the employee may exercise displacement rights as provided in Rule 15.


        (b) An employee who acquires a position through displacement rights and fails to qualify within will be allowed seven days from date of removal in which to exercise displacement rights.


        (c) Employees awarded or displacing on regular positions and employees breaking-in on regular po their own desires will be given full cooperation by supervisors and other employees in their efforts to qualify.


        (d) An employee removed from a position for failure to qualify within thirty working days may.-if he so desires handle under Rule 24 within twenty days of removal."


The Organization takes the position that by past experience claimant has clearly demonstrated her ability to learn and work other highly skilled positions without first having prior knowledge, or experiences in a particular Department or on a ce had the Carrier given her an opportunity she would have been able to perform the duties attached to Position No. 74 in the Payroll Department,

 In support of its positions the Organization argues that the intent and purpose of both Rule 6 and 10 was to insure that an employe having adequate capacity be given an opportunity to qualify for the positions and that neither of the Rules require that the cost qualified employs be awarded the position if the most senior employs has adequate fitness and ability to learn and perform the work of the pos
The Board has held that we do not read Rule 6 as a strict seniority rule; rather it is limited by the application of fitness and ability. Neither have we interpreted Rule 10 as argued by petitioner. By its very language this Rule applies only "after being awarded bulletined positions or permitted to exercise displacement rights." Such is not the case here and reliance upon this Rule by petitioner is missplaced. Seep e.g., Third Division Award
 No. 22029. _
                    Award Number 2+193 Page 3

                    Docket Number C1t231128


It is well established by the Awards of this Hoard that Carrier has the prerogative to determine fitness and ability, and, when such a determination has been made, this Board. will not disturb it unless it appears that the Carrier was See Awards 22029 and 11328 and those cited therein. When, as here, Carrier determines that the claim the burden is then upon petitioner to establish Carrier's error by substantive evidence.

 Fry our examination of the record is this case, petitioner has failed to meet this burden. Carrier contends that Position No. 74 requires payroll experience to perform the duties of coding and auditing Division, General Office and Executive Payrolls., and processing related correspondence. The record shows that Carrier made its selections based upon the fact that the successful applicant had 3 1-/2 Years experience is the Payroll bureau, while claimant did not have any experience is payroll. There is no evidence to refute claimant's lac showing that (terrier's actions were asbitrary,,capricious, biased ar in any way defective. Therefore, (terrier's determination must stand and the claim must be denied.

 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 FSaployes involved is this dispute are respectively (terrier sad Employee 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 AIITTFTMENT HOARD

                            BY Order of Third Division


ATTEST: Acting Executive Secretary
        National Railroad Adjustment Board


y
        Rosemnrie Breach - Administrative Assistant


Dated at Chicago, Illinois, this lath day of March 1983.