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.
In 1992 Claimant sustained an on-duty injury. He was cleared to return to duty with restrictions in May 1993. Claimant's restrictions precluded him from lifting, laboring and working down on the tracks. On July 26, 1993, Claimant was awarded the position of Speed Swing Operator. lie worked that position from August 3, 1993 until an incident on August 17, 1993. On August 17, 1993, Claimant's Foreman told him that the Roadmaster had advised that Carrier could not accommodate Claimant's restrictions and that Claimant was to go home and keep Carrier advised of any change in his restrictions. On August 23, 1993, the Roadmaster wrote Claimant advising that due to the lack of sufficient time to observe his performance on the speed swing, Claimant was disqualified from that position.
The parties are in dispute over what occurred on August 17. 1993. Organization contends that Carrier arbitrarily ordered Claimant off the speed swing and sent him home. Carrier maintains that it had no problem with Claimant's ability to operate the speed swing but that Claimant stated that he could no longer operate the machine due to his medical condition. On several occasions this Board has recognized that, as an appellate tribunal, we are unable to resolve irreconcilable disputes in the evidence and therefore must dismiss such claims as turn on those disputes. See, e.g., Third Division .wards 31868 and 31831.
During handling on the property, the Organization submitted a signed statement from Claimant attesting that:
At all levels of handling on the property, the responding Carrier officials asserted that Claimant maintained that he was unable to operate the speed swing due to his medical condition. However, Carrier presented no evidence from individuals with personal knowledge, such as the Foreman or the Roadmaster, in support of this assertion. Had Carrier done so, the result we reach may have been different. However, as the record now stands, the only evidence is Claimant's unrefuted signed statement that he voiced no complaints about operating the speed swing. The assertions of Carrier's officials to the contrary, unsupported by probative evidence, cannot create a conflict in the facts. See Third Division Awards 21224, 21222, 18870. Based on the record developed on the property, the claim must be sustained.
This Board, after consideration of the dispute identified above. hercbv orders that an award favorable to the Claimantls) be made. The Carrier is ordered to make the %ward effective on or before 30 days following the postmark date the :ward is transmitted to the parties.