BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
NORFOLK AND WESTERN RAILWAY COMPANY
In early 1981, Claimant applied for the open position of Assistant Section Foreman. The position was awarded to one of Claimant's fellow workers, Mr. D.A. Hurt. Claimant felt he had been unjustly treated, in that he believed himself to be more qualified for the position than Hurt.
On May 5, 1981, the Organization requested a formal investigation to determine whether Claimant had been unjustly treated. The investigation was granted, but on the basis of the evidence adduced at the hearing Carrier determined that Claimant had not been unjustly treated and refused to change the decision awarding the Assistant Foreman position to Hurt.
On July 17, 1981, the Organization filed a claim requesting that Claimant be given Assistant Section Foreman's rights ahead of D.A. Hurt and that he be awarded the difference in pay, if any. The Claim was denied at all levels of appeal on the property, and the Organization then submitted the matter to this Public Law Board for resolution.
The issue to be decided in this dispute :s whether Carrier violated the Agreement by failing to award the Assistant. Section Foreman position to Claimant, and if so, what should the remedy .`.e.
Rule 8(d) of the Agreement, which governs the bulletining and filling of positions, reads in pertinent part as follows:
Since Rule 11 is not applicable in this case, Rule 8(d) gave Carrier the right to choose the applicant whom management considered best qualified for the position of Assistant Section Foreman. Thus, absent a showing that Carrier's action was arbitrary, capricious, or an abuse of discretion, the decision to select Hurt for the position must be allowed to stand.
Roadmaster L.P. Porter made the decision to choose Hurt for the position rather than Claimant. At vie investigation, Porter testified that he was familiar with the experience and work of both men. He testified further that Hurt had
a great deal of knowledge about general railroad maintenance, and that, at the time the position was vacant, Claimant did not have equivalent qualifications.
The burden is on the Organization to show that the decision to choose Hurt rather than Claimant was made in an arbitrary or capricious manner. However, the record shows that Roadmaster Porter made the decision based on the experience and knowledge of both men. Wile the Organization may disagree with his opinion as to which employee is better qualified, it has failed to show that his decision was made in such a way as to be an abuse of Carrier's managerial discretion. Under these circumstances, the Board can only hold that the Organization has failed to show a violation of Rule 8(d). Accordingly, the claim must be denied.