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, 193.1.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant, a Signalman. commenced a medical leave on December 20, 1993. .At the time. Claimant did not possess Signal Foreman's seniority. While Claimant was on medical leave, on Februar- 14, 1994, the Carrier advertised a temporary Signal Foreman's position (Nf252) at Old Saybrook, Connecticut. That position had been )acated by G. Stanley who was awarded another temporary Signal Foreman's position sacated as a result of the illness of Foreman C. Miller. Because there were no successful bidders on position N'252, the vacancy was assigned to R. Hamilton effective March 8, 1994, with Hamilton establishing Foreman's seniority on that date.
On March 9, 1994 Signal Foreman Miller returned to his position which was being filled by G. Staley. Staley returned to his position which was temporarily filled by Hamilton, who in turn returned to her former position.
On March 20, 1994, Claimant returned from his medical leave and applied for position W252. Although the Carrier initially indicated that Claimant would be tested for that position, because the position no longer existed, the Foreman's test was not conducted. On April 25, 1994, Hamilton was awarded another Foreman's position (W312) at Groton, Connecticut.
This claim asserts that Claimant should be allowed to take the Foreman's test and, upon passing, be awarded position W252 effective March 8, 1994.
As the Organization points out, the above facts show that Hamilton worked the Foreman's position for one day and established Foreman's seniority and Claimant, who was senior to Hamilton and on medical leave, was not permitted to bid on the position upon his return from medical leave. Form 1 Award No. 31986
The Organization's argument that Claimant should be permitted to take the Foreman's test and, if successful obtain the Foreman's position is an equitable one. That argument heavily emphasizes the fact that junior employee Hamilton was in the position for only one day and obtained Foreman's seniority. However, the Organization's argument does not find support in the Agreement.
But, similar Rules have been "interpreted as returning a disabled employe to the same seniority he had when he became disabled ... [and ill does not avow an increase in seniority to other classes retroactively in terms of what `might have been' or `could have been,' had the employee actually applied and been qualified." Third Division Award 25935. Compare Third Division Award 19225 cited by the Organization which involved a dispute over positions where the returning employee held seniority in that classification. Third Division Award 20848 also cited by the Organization involved application of the Universal Military Training Act, an issue not involved in this case.