"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Southern Pacific Transportation Company (SP):

Claim on behalf of J.J. Morgan, Jr. for reinstatement to the position of Foreman with payment of all lost wages, beginning May 11, 1992, account Carrier violated the current Signalmen's Agreement, particularly Rule 42(b), when it disqualified the Claimant after he had worked more than 30 days on his position. Carrier's File No. Sig 92-14. General Chairman's File No. SWGC-494. BRS File Case No. 9024-SP."

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

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.

Parties to said dispute waived right of appearance at hearing thereon.

On April 1, 1992, Claimant was assigned to a Signal Foreman position. On May 11, 1992, Claimant was notified by Carrier that he was disqualified as a Signal Foreman. He exercised his craft seniority in accordance with the terms of the negotiated Rules of Agreement.

Rule 42(b) reads as follows:

"(b) An employee accepting promotion will be granted thirty (30) working days in which to qualify."

For its part, Carrier argued that after it had

"This Division has uniformly held that determination as to ability and fitness is exclusively a managerial function and will be sustained unless it appears that the decision of the Carrier was capricious or arbitrary; that the burden is on Claimant to establish that such was the case, and that if the decision of the Carrier is supported by substantial evidence it will not be disturbed."

To be sure, there have over the years been instances in which Carrier's judgment has been held to have been capricious or arbitrary. However, those instances have been the exception to and do not diminish the general rule which established Carrier's sole right to determine fitness, ability and qualifications.

In this case, Rule 42(b) is not a time limit beyond which qualifications are guaranteed or unilaterally established. In this case, Carrier gave a reason for the disqualification,

namely that "Claimant was disqualified as Foreman due to the fact Claimant was unable to perform the duties as a Foreman." The Board is of the opinion that Carrier was less than astute in not providing the organization with the litany of events which were set forth in the in-house communication dated May 9, 1992, which was introduced into the case file for the first time before the Board. However, even ignoring this in-house letter, which we must do because of its late presentation, Carrier's determination of lack of qualifications, whenever made, is subject to review by this Board only if it is proven by the organization to have been arbitrary or capricious.

The terms arbitrary and capricious have generally been defined as a willful and unreasoning action taken without consideration of and in disregard of the facts and circumstances of a case. An action is not arbitrary or capricious when it is exercised honestly and upon due consideration.

While carrier may well have shot themselves in the foot by withholding the vital evidence contained in the May 9 letter,

the stated reason that Claimant was unable to perform the duties as a Foreman.

Rather, the organization was remiss in its obligation to come forward with substantive proof that Claimant was, in fact, qualified for the Foreman position. The mere fact of being assigned to the position for 34 days is not, per se,

proof of qualifications. It is noted from the case record, without contradiction by the Organization, that Claimant did not request an Unjust Treatment Hearing which could well have acted as a forum for the Claimant to demonstrate his fitness and ability for the position.

AWARD