Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 2'073
THIRD DIVISION Docket No. MS-26700
88-3-85-3-450
The Third Dirrisiin consisted of the regular members and in
addition Referee -dwin H. Benn when award was rendered.

(James C. Harvey PARTIES TO DISPUTE:


STATEMENT OF CLAIM:

"On October 13, 1983, I, James C. Harvey, carpenter for the Maine Central Railroad Company, and member of the Brotherhood of Maintenance of Way Employees, made a timely bid pursuant to the agreement between the abovestated Carrier and Union which I was then qualified.

On October 18, 1983, Maine Central Railroad Company management awarded the crane operator position to M. L. Card, an employee over whom I had seniority, without having first given me the trial to establish my qualifications as a crane operator guaranteed me under Rule 17 of the abovereferenced agreement.

WHEREFORE I, James C. Harvey, pray that I be awarded both time and wages paid to M. L. Card since October 20, 1983, the effective date of his tenure as a crane operator, as well as all time and wages to be paid in the future to M. L. Card as a crane operator."

FINDINGS:

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

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.


Form 1 Award No. 27073
Page 2 Docket No. MS-26700
88-3-85-3-450

As a result of an October 4, 1983, bid posting, on October 18, 1983, the Carrier, through notice signed by Supervisor B&B L. G. Perkins, Jr., awarded the position if ^rane Operator to M. L. Card, an employee junior in seniority to Claimant, rather than to Claimant who also bid on the position. The record indicates that in early 1980 Claimant attempted to become qualified as a Crane Operator, but after two weeks as a student Operator, Claimant valuitarily did not complet conflict.





Upon review of the record, we must deny the Claim. "In light of the long line of Awards of this Division it has been decided that fitness and ability determinations rest with the Carrier, unless a showing is made that the determination was arbitrary or capricious." Third Division Award 26379. It is undisputed that at the time the bid was awarded Claimant was not considered qualified for the training which, if successfully completed, would have resulted in his qualification in 1980. On the Card was qualified. Indeed, the record shows that Card had been working as a Crane Operator for almost four years. In light of the above, we are therefore unable to find that the Carrier's conclusion that Claimant was not qualified was either arbitrary or capricious. We must therefore defer to the Carrier's determination of fitness and ability which permits the selection of the junior employee Card over Claimant under the terms of Rule 17.

We are unable to conclude that Claimant was improperly denied a "fair trial" for the position within the meaning of Rule 17 so as to dictate a different result. Claimant quit his earlier training period because of an alleged personality conflict. We do not find in this case that the failure of the Carrier to grant Claimant a new trial period subsequent to the posting of the bid equates to a showing that the Carrier violated the requirement of a fair trial under Rule 17. Although Claimant's new bid may have indicated that he changed his mind about his desires to be qualified as a Crane Operator since he removed himself from consideration in 1980 and further, although Claimant is also obviously free through another training period to establish his qualifications for future bids, we nevertheless can find no contractual support for Claimant's argument that the Carrier was obligated to give Claimant another trial subseq Form 1 Page 3

Award No. 27073
Docket No. MS-26700
88-3-85-3-550

Similarly, the fact that the B&B Supervisor signed the bid award as opposed to the Division -'ngi;ieer does not change the result. We are satisfied that the B&B Supervisor awarded the Sid and made the determination of qualification under the .i the circumstances of this case such was sufficient within the meaning if Rule

Claim denied.

Attest

Nancy J. DON - Executive Secretary

NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division

Dated at Chicago, Illinois, this 17th day of May 1988.