Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42757 Docket No. MW-42623 17-3-NRAB-00003-140324

The Third Division consisted of the regular members and in addition Referee Barry E. Simon when award was rendered.

(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference

PARTIES TO DISPUTE: (

(CSX Transportation, Inc.

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Carrier failed to comply with Article V of the BMWE Mediation Agreement-A-8853 dated February 10, 1971 as amended October 30, 1978 and September 26, 1996 following the injury sustained by Mr. J. Elliott on October 25, 2012 and continuing (System File C20825312/2012-134910 CSX).

(2) As a consequence of the above-stated violation, Claimant J.

Elliott shall be '... provided the coverage under the plan at 80% of his basic full-time weekly compensation from the carrier for the time lost, beginning after the accident and continuing.'"

FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

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.

Parties to said dispute were given due notice of hearing thereon.

On October 25, 2012 Claimant was assigned to Basic Track Foreman Position 5C13-066 at Corbin, Kentucky. On this position, his assigned hours were 7:00 A.M. to 3:30 P.M. with a 30-minute unpaid meal break. Claimant began his meal break that day at approximately 11:45 A.M., leaving the property in a company vehicle. At approximately 12:05 P.M. he was involved in a vehicular accident and sustained an injury. A claim was filed on behalf of Claimant for benefits under the Off-Track Vehicle Agreement. This Agreement provides wage protection under certain conditions to employees injured while riding in or operating off-track vehicles. In pertinent part, the Agreement states:

"Where employes sustain personal injuries or death under the conditions set forth in paragraph A below, the carrier will provide and pay such employes, or their personal representative, the applicable amounts set forth in paragraph B below, subject to the provisions of other paragraphs in this Article.

A. Covered Conditions

This Article is intended to cover accidents involving employees covered by this agreement while such employees are operating, riding in, boarding, or alighting from off-track vehicles authorized by the carrier and any accident which occurs while an employee is under pay."

The Carrier initially denied the claim on the basis that the Claimant was on his unpaid lunch break, and therefore did not meet the requirement that he be "under pay." It further asserted that he was operating the vehicle without permission, and was therefore not authorized by the Carrier to drive it. According to the Carrier, employees are instructed that they are not permitted to take company vehicles for their meal breaks.

The Organization has responded that the Claimant took the vehicle to have it fueled at the Chevron station, and he should be covered by the Agreement because he was operating the vehicle for the benefit of the Carrier. The Board does not find a factual basis for the Organization's assertion. It appears from the record that the accident occurred between McDonald's, where the Claimant had lunch, and Corbin

Yard. The Chevron station is not in that line of travel, and the vehicle's fuel tank was not filled. Inasmuch as the evidence before the Board does not establish that he had gone to the gas station or was on his way to it, we must reject the Organization's argument. Because he was not under pay at the time of the accident or authorized to use the vehicle, we cannot find that the Claimant satisfied the requirements for coverage under the Agreement. He is not entitled to the benefits sought.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 25th day of September 2017.