"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier failed and refused to assign Track Forman M. E. Mojarro to the track foreman position on Gang 8162 by Bulletin No. WRT 1046 dated March 25, 2000 and instead assigned junior employe E. Avelar (System File J-0020-55/1231543 SPW).

(2) As a consequence of the violation referred to in Part (1) above, Claimant M. E. Mojarro shall now be assigned to the foreman position in question and he shall be compensated for all lost wages beginning on March 25, 2000 and continuing."

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In late 1996, the Union Pacific Railroad Company (Union Pacific or the Carrier) and the Southern Pacific Transportation Company - Western Lines (Southern Pacific) merged. The Surface transportation Board imposed the New York Dock Conditions on this merger.

At the time of the merger, there was a Collective Bargaining Agreement in effect between the Southern Pacific and the Brotherhood of Maintenance of Way Employes (BMWE or the Organization) governing maintenance of way employees on the Southern Pacific.

The BMWE Pacific Federation represented numerous classifications of employees who worked on several Southern Pacific Divisions, including the Los Angeles Division. On September 30, 1997, the BMWE Pacific Federation, the BIVIWE Union Pacific Federation, and the Carrier entered into an implementing Agreement pursuant to Article 1, Section 4 of the New York Dock Conditions. That Agreement was effective November 1, 1997.

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On March 17, 2000, the Carrier posted a bulletin for the position of Foreman

pounds to possess a CDL. Regional Gang 8162 had several vehicles with a GVW of 26,000 pounds.

The Assistant Foreman on Gang 8162, Mojarro, applied for the Foreman's position. He does not possess a CDL. The Carrier awarded the position to an employee who was junior in seniority to Mojarro who did possess a CDL.

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The claim was appealed on the property but could not be resolved. It was therefore appealed to the Board.

It is well settled that unless restricted by a specific Rule or Agreement, it is management's prerogative to establish the qualification of advertised positions. However, this managerial prerogative is not unconditional. Rather, when challenged, management must demonstrate that the qualifications for a posted

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In the instant claim, the Carrier contends that the Foreman of Gang 8162 was required to have a CDL because several vehicles driven by the gang weighed more than 26,000 GVW pounds and the DOT requires operators of these vehicles to be CDL certified. Therefore, if the drivers assigned to these vehicles are absent from the gang for whatever reason, the Foreman could be called upon to operate these vehicles.

The Organization argues that requiring the Forman of Gang 8162 to be CDL qualified was arbitrary because his core responsibility is to supervise and instruct

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accomplished safely and efficiently. According to the Organization, there were four

Truck Drivers, Welders and Welder Helpers in the gang who were CDL qualified.

Moreover, if the Carrier needs additional CDL qualified employees in the gang, the Organization contends that it can advertise for these additional drivers.

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The Carrier argues that it required the Foreman of Gang 8162 to have a CDL because he may be required to operate a vehicle in the gang that requires the driver to be CDL/DOT certified. There is a rational basis for this condition, in our view. In the absence of qualified drivers from .the gang, the Foreman may be required to operate vehicles assigned to the gang in excess of 26,000 pounds GVW to keep the gang functioning and productive. The Carrier's concerns are not hacelecc. RuthPr they are grounded in common sense. Accordingly, the Carrier was not arbitrary when it required the Foreman of Gang 8162 to possess a CDL. The claim is denied because the Claimant did not have a CDL.

AWARD