This dispute concerns the Carrier's selection of an employee junior to the Claimant for a position as Foreman, which had been bulletined October 11, 1990. The applicable Rule in such selection is Article 5, which states in Rule 1 thereof as follows:

"Promotions shall be based on ability and seniority; ability being sufficient seniority shall govern."

The Claimant, while serving as a Foreman, was dismissed on January 27, 1989, for "starting a fire on the right-of-way and striking a fellow employe with a handful of track spikes causing a personal injury". He was reinstated thereafter on a leniency basis with the understanding that he "forfeits all seniority in the Track Foreman classification".

In February 1990, the Claimant successfully applied for and was assigned to a System Foreman position on Gang 8900. On August 15, 1990, the Claimant was again dismissed from service for "making threats to physically injure an employee of the Union Pacific Railroad and possession of a deadly weapon". Following "therapeutic counseling," the Claimant was again returned to service on October 12, 1990, in his capacity as a System Foreman. Immediately upon his return, he bid upon the bulletined position of Foreman, which was a so-called "District" Foreman position. It was this position for which the Carrier found the Claimant without the necessary "ability" and thus awarded the position to a junior employee.

The organization points to the Claimant's status as a Foreman at the time of his bid and contends that, on this basis, the Carrier can hardly contend that his ability is not "sufficient." The Carrier, on the other hand, rests on its prerogative to assess ability and contends that the offenses for which the Claimant was twice dismissed from service are sufficient to hold that he could not adequately meet the responsibility as a Foreman who, in contrast to the position he currently held, would be required to function under largely unsupervised conditions.

The Board holds that the Carrier's action was clearly not arbitrary or in any way contradictory to its previous judgment of the Claimant. After the first dismissal, the Claimant was permitted to return to service and, in due course, to Foreman status. The second dismissal followed, and his second return to duty was based on professional medical advice as to his psychological condition. It is certainly not surprising that the Carrier found no basis to permit the Claimant, immediately upon his return, to undertake a new supervisory position. Such judgment was well within the Carrier's authority.

AWARD