The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe 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.
D. Cheek, D. Wilhoit, D. Neuspickel, S. Cooper and P. Price constitute the Tie and Surfacing Gang headquartered at Livingston, Kentucky. Respectively, the individuals are Foreman, Assistant Foreman, Tamper Operator, Ballast Plow Operator and Track Repairman. The gang works Monday through Friday with rest days Saturday and Sunday.
On Thursday, June 7, 1990, at approximately 6:30 P.M., a derailment occurred which caused "extensive" track damage. Foreman L. Wynn, Gang 5C85, was on duty and reported to the derailment site. Tamper Operator Neuspickel, who was also on duty, worked a tamper with Foreman Wynn at the site in an effort to repair the damage. At the same time, and in connection with the derailment, Track Repairman Price helped Foreman Cheek move a ballast regulator from Corbin, Kentucky to Sinks, Kentucky.
On June 20, 1990, the Organization filed the present claim on behalf of Foreman Wilhoit and Ballast Plow Operator Cooper. The Organization maintained that, "On June 7, 1990, the Claimants were released from duty after they had completed their tour of duty at eight hours at their respective straight time rates and three hours at their time and one-half rates. Foreman Wynn was used by the Carrier to resume Claimant Wilhoit's assignment for a period of nine additional hours. Had Claimant Wilhoit been allowed to continue his assignment on June 7, he would have worked an additional five hours at his time and one-half rate, and four hours Form 1 Award No. 29859
at his double time rate." The Organization further maintained that Claimant Cooper was also "not allowed to complete his tour of duty. Had Claimant Cooper been allowed to complete his tour of duty, he would have worked an additional five hours at the time and one-half rate, and four hours at his double time rate of pay."
Carrier denied the claim stating that: "An emergency existed on the property precipitated by a derailment which occurred on June 7, 1990. Wynn, Neuspickel and Price were on duty at the time, and readily available to meet the critical service demands. Claimants Wilhoit and Cooper were not on duty, having completed their respective tours earlier in the day."
The Organization never rebutted the Carrier's emergency defense in handling on the property. An unrefuted material fact must be taken as true. See Special Board of Adjustment No. 540, Award 660. Carrier was faced with a derailment emergency which necessitated immediate action. It was no violation of the Agreement to use employees who were already on the scene, rather than wait for Claimants to arrive at home and call them back out again. Therefore, this claim is denied. See Public Law Board No. 76, Award 24, as well as Third Division Awards 20527 and 21012.