(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

(The Chesapeake and Ohio Railway Company

(Southern Region)


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

 (1) The disqualification of Mr. G. W. Hughson as ballast regulator operator on June 10, 1983 was improper, without just, sufficient or reasonable cause (System File C-M-1826/MG-4117).

 (2) The Carrier shall return the claimant to the position of ballast regulator operator for at least three (3) days under the supervision and instruction of a qualified ballast regulator operator for the purpose of qualifying on said machine and he shall be allowed the difference between what he would have been paid at the Class A Machine Operator's rate and what he was paid at the trackman's rate beginning June 8, 1983 and continuing until he is afforded a fair opportunity to qualify as a ballast regulator operator."

 OPINION OF BOARD: Claimant, a Class A Equipment Operator, had been displaced
 from his position on June 6, 1983. Following an alleged
 argument with a Carrier Officer, Claimant was permitted to displace a junior
 equipment operator who was operating a Ballast Regulator. Claimant, even
 though he had operated a Tamper had never previously operated a Ballast
 Regulator. He was disqualified by three Carrier Supervisors on the third day
 of his assignment, triggering the dispute herein.

 Petitioner argues that Carrier failed to afford Claimant a reasonable opportunity to qualify on given less than eight hours time before being disqualified while the Rules provide that he should have been given three days. Carrier, on the other hand maintains that Claimant had been given ample opportunity to learn to use the equipment, with the assistance of an experienced operator, and failed to qualify. Carrier insists that Claimant was properly disqualified in accordance with Rule 13(d).

 It is well established that Carriers have the right to determine the fitness and ability of an employe for a position; further such evaluations will not be overruled unless it can be shown that Carrier was arbitrary or capricious in its determination. In addition, it must be shown by Petitioner by substantial probative evidence that Claimant possessed the necessary ability for the position sought. In the instant dispute, from the evidence produced during the handling of the matter on the property, the Organization
                        Docket Number MW-25980


has not supplied proof that Claimant had the necessary ability, that he was not afforded ample opportunity under the Rules to demonstrate his ability, or that Carrier's determination was flawed and can be considered to have been arbitrary or capricious. In short, Petitioner has not borne its burden 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 Agreement was not violated.


                        A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: i
 Nancy J.7 /P - Executive Secretary

 Dated at Chicago, Illinois, this 24th day of April 1987.