PARTIES TO TEE DISPUTE:






ISSUE:

OPINION OF BOP.RD: _.'

 - The origin of this dispute is a March 2, 198$

 Notice by the Company to employee organizations:

°:CONRAM ' - - ._

                                                        1-' ,I nl ;~.> s ~ T .a


    R. E. SWERT

    VICE PRESIDENT

    LABOR RELATIONS


        March 2, 1984


        Mr. A. V. Robey

        Int'1 Brotherhood of Boilermakers, Iron: Ship Builders,

        Blacksmiths, Forgers and Helpers


        Mr. J-A. Vinanskie

        Brotherhood Railway Carmen of the Un~Ited States and Canada


        Mr. J. A. Lieb //'

        Brotherhood of Railway, Airline an Steamship Clerks'


        Mr. E. J. Zaldaris Mr. '. G. Klocek

        Mr. A. J. Carbon Mr.~D. H. Rice

        Mr. R. L. Kilpatrick Mr, B. D. Nardis

        American Railway S Airway Supervisors Division-BP.AC_-


        Mr. P. A. Puglia

    _ Mr: H. L. Lindenmuth-

        Int'1 Brotherhood of Electrical Workers


        Mr. G. J. Francisco, Jr.

        Int'1 Brotherhood of Firenen and Oilers


        Mr. J. A. Mendralla .

        International Longshoremen's Association


      Mr. J. E. Burns Mr. N. Papaianni

      ' Mr. C. A. Arthur Mr. W. F. Mitchell

      Mr. G. L. Datres

      Int'1 Assn. of Machinists and Aerospace Workers


        Mr. J. P. Cassese

        Mr. .T. Dodd

        Mr. J. J. Lattanzio

        Brotherhood of Maintenance of Way Employes


                                        EXHIBIT 1


                                2


            CONSOCIOATCD PAIL C^PrOqAIION SIX PG::N ·;L:I~ PLAZA PH~FD:LPSIA Fs 1cip4

~~sD - i

 Mr. E. J. Fusco
 Mr. T. F. Nolan, Jr.
 Sheet Metal Workers International Association

 Mr. H. E. Britcher
 United Signalmen General Committee

 Mr. W. D. Summervi
 International B her cod of Teamsters

 Mr. M. A. S war .
 American rai ispatchers Association'

 Mr. A. A. Terriego
 Transport Workers Union of America

 Mr. J. C. Thomas
 Railroad Yardma5ters of America

 Mr. D. F. Riley
 Brotherhood of Locomotive Engineers

 Mr. E. T. Adkins Mr. C. P. Jones
 'Mr. G. Baloozian Mr. R. E. Frear '
 Mr. W. A. Beebe Mr. R. M. Leslie
 Mr. C. F. Fuller Mr. S.-T. Malizia -- '
 Mr. R. D. Jarvis Mr. J. J. Tleyhe
 Mr. C. D. Winebrenner
 United Transportation Union (C&T)

 Mr. R. Di. Belle Mr. J. N. Fralick
 Mr. T. H. Cannon Mr. A. Gula
 Mr. C. A. DeBolt Mr. T. McGovern
 Mr. R. E. Doan Mr. T. C. Roll
 United Transportation Union (E)

 Gentlemen:

 As most of you are aware, the Occupational Safety and Health Administration, based on complaints filed, cited Conrail for various alleged violations of OSTIA requirements, including 29 CFR 1910.137.(x) for failing to require the wearing of safety shoes at the Enola, Pa. diesel repair facility.

 Consequently, under the order, last November this Company was obliged to require all employees directly involved in the repair and maintenance operations, including material handling, at Enola Locomotive Tezninal to wear safety shoes.
                                                ~~50n


Based on this ruling, Conrail is now instituting a systemwide safety shoe policy and has advised OSHA accordingly. Therefore, effective June 1, 1984, it will be mandatory that all employees wear safety shoes while in field service in the Maintenance of Equipment, Maintenance~of Way and Material Distribution Departments and other Departments as may be designated. Bulletin board notices will be posted throughout the system advising all employees of this requirement.

 The safety shoes must have a steel toe cap that meets ANSI , Z-41, classification 75; a definite heel not more than two inches high; a sole and height appropriate to the occupation; and be fastenable by laces, zipper or buckle.

 Effective March 15, 1984, when-the safety shoes are purchased from one of the following companies through payroll deduction, Conrail will reimburse the employee in the amount of $15 for each pair of shoes, not to exceed two pair each calendar year. Any change in the list of approved companies will be communicated to employees via bulletin board notices.

        Safety First Shoes, Inc.

        421 South Carlisle Street

        Allentown, PA 18105


        Knapp King Size Corp. _

        Safet;· Shoe Division

        One Knapp Centre

        Brockton, MA 02401


        Iron Age Protective Company

        2406 Woodmere Drive

        Pittsburgh, PA 15205


        Safety Shoe Distributors, Inc. 500 Pest 172nd Street South Holland, IL 6-0473 .


        Lehigh Safety Shoe Company

        110Q East Main Street

        Endicott, NY 13760


In an effort to promote the wearing of safety shoes, even where not mandatory, this $15 subsidy will be available to any Conrail employee purchasing shoes through payroll deduction. In addition, any employee in those Departments where safety shoes will be mandatory, who purchased safety shoes between January 1, 1984 and March 15, 1984, will be allowed - a $15 reimbursement upon presentation of proof of purchase.
 . 3-75D
                                                          -/


    t'


        Your participation in conveying to your members the necessity of complying with this safety requirement will be appreciated.


        Sincerely,


        /s/ R. E. Swert


        R. E. Swert

        Vice President-Labor Relations


5
                                                3'150 rl


A May 10, 1984 Notice to Organization Chairmen, including
 Mr. W.A. Radziewicz, United Signalmen General Committee,
 informed them that the "effective date for enforcement will
 be delayed until July 16, 1984." It is this policy which
 has given rise to this dispute. .'
 Conrail and BRS have differing positions on how the issue before this Board mould be framed. Conrail views it as "Does Rule 8-A-1 require the Company to reimburse employees for the cost of safety shoes?" BRS sees the issue in two dimensions namely, that Rule 8-A-1 of the June 16, 1981 Agreement between the Parties covers the use of safety shoes; and, if it does not, the issue of how much is a proper allowance towards their purchase is a condition of employment to be negotiated between them. After reviewing the entire record this Board has determined. that the issue set forth above focuses upon the essence of the dispute.
 Rule 8-A-1 of the June 16, 1981 Agreement provides "Protective clothing as required by the Safety Rule Book (3-7-C) will be provided by the Company." In that Rule Book as of the date of this Agreement there is a portion headed "Attire" followed by:

 6
 ,. 3-ISD'~

                        ATTIRE


      3020. Wear suitable gloves and clothing:


                (a) That gives ample body, arm and leg protection. When acetylene, electric or thermit cutting or welding, wear cuffless overalls or trousers. Short sleeve or "T" type shirt may be worn if not performing work requiring arm protection.


                (b) Not badly torn or loose enough to be hazardous, including long necktie or jewelry, unless fastened or securely tucked inside shirt.


                (c) Not greasy, oily or saturated with flammable substance.


                (d) With loose or bagzy trouser cuffs or bottoms secured to prevent flapping, catching or dragging.


                (e) That does not interfere with vision or hearing, except authorized hearing

_ protection..

      3021. Wear suitable shoes and overshoes:


                (a) Preferably leather shoes not less than six inches high, appropriate soles and steel toe protection.


                (b) Not-sandals, open-toed, canvas or other shoes, that cannot be fastened.


                (c) Completely laced, buckled, zipped or otherwise fastened.


                (d) .Not with loose, thin, cracked or rippled or wedge type soles, or without a definite heel.


                (e) Not cowboy boots, "Cuban" or stacked heels or platform soles.


                (f) Not with metal plate or cleat on sole or heel. Not with laces dangling far enough to be a tripping hazard."


                              7

                                              3~Sb~l


The Company's contention is that Section 3020 of the Rule Book clearly covers"...suitable gloves and clothing" while Section 3021 covers "...suitable shoes and overshoes" (emphasis added). Because of this specific reference to "clothing" in the one and "shoes" in the other, it follows that the word "clothing" in Rule 8-A-1 must be limited to ,just that, clothing and not shoes. If shoes were intended the Parties could have readily used the term "protective attire" or "protective shoes and clothing." The Organization contends that under Rule 8-A-1 all kinds of protective clothing would be provided by the Company, even as they have provided other protective gear mentioned in the Safety Rule Book. Moreover, once the safety shoe policy became effective the Safety Rule Book. (S-7-C) was changed to reflect the requirement of safety shoes in.Section 3021. In the alternative the Railway Labor Act "precludes Conrail from changing working conditions without negotiating a consummated agreement between the parties" (Organization submission).
 Thus the critical question presented here is the meaning of the word "clothing." On one level the term "clot`LnQ" suggests "cloth" which has been defined as "pliable material made usually by weaving, felting or knitting; i.e., the suggestion of something

 8
                                              3-750 -


made of fibers; although modern plastic garments certainly -
 do not fit such a narrow definition. On another level, however,
 the "clothing" in Rule 8-A-1 does not stand alone, but is part
 of the phrase "protective clothing; that is same sort of mat?~rial(s)
 which stand between the body and a hazard to it. In this sense
 "clothing" or "clothes" means "covering for the human body ...for
 ...defending the body from cold or injuries" (Webster's
 Universal Dictionary). That "clothing" encompasses protection
 of all parts of the body against "injuries" is instructive here.
 Beyond dictionary definitions the term "clothing" is commonly
 used in popular every day parlance to indicate what one wears
 without any necessarily precise differentiation between
 "clothing" and "shoes". Incidentally, in both dictionaries
 and in ordinary language "attire" is a widely accepted term
 for everything that a person wears (Webster's New Collegiate
 Dictionary and Rodale's Synonym Finder).
 This "semantic" analysis is supported by the following: 1) OSHA regulations are an expression through an administrative agency of Congressional (national) intent that the health and safety of employees in the workplace be of paramount concern

 9
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      to the Employer. The main thrust of the regulations is in directing that the Employer provide a healthy and safe environment, including protective materials and devices of all manner and type which are placed on the employee's body: A reading of "protective clothing" in Rule 8-A-1 as including "safety shoes" is in harmony with this national policy. 2) The Company has long provided employees with various protective devices, whether mentioned in the Safety Rule Book or in other Company generated policies, when they are required on the ,job, e.g., "hard hats, goggles, helmets, or hand shields for welding, rubber plastice-coated gloves, shin protectors and face shields. In addition, the Company has always provided foot protectors under certain conditions which act as 'steel toes' attached to the outside of the shoes" (Company Brief). Also see Sections of the Safety Rule Book (S-7-C) under the Heading of Personal Protective Equipment, e.g., "goggles", "hearing protection", "foot protectors or safety shoes" under certain circumstances, "shin protector", "helmet", "face shield"; and Electrical Protective Gloves. These "non-clothing" devices could not easily be fitted within a narrow definition of "clothing", but they do indeed fall within the broader, commonly understood meaning of "protective clothing."

                                                37~Om


    3) Sections 3020 and 3021 of the Safety Rule Book, i.e., the

    details under the headings "Wear Suitable Gloves and Clothing"

    and "Wear Suitable Shoes and Overshoes," are both listed under

    the main heading of "ATTIRE" in bold capitalized letters. On

    the basis of the commonly used synonym for body covering in

    general "shoes" are perforce covered under "attire".

    4) Any doubt as to whether or not the Safety Rule Book mandates

    the use of safety shoes while the employees in question here are

    on the job is eliminated in the new language of Section 3021

    in place since the safety shoes policy became effective. It

    now reads (Exhibit 16, Organization Submission):


              3021. Employees must wear safety-toe footwear of sturdy construction and proper height (preferably , at least six inches) to ensure adequate protection. Safety-toe footwear shall meet the-requirements specified in American National Standards Institute .

- Safety-Toe Footwear, 241.1 class 75 minimum. This
              footwear must be completely laced, buckled, zipped

              or otherwise fastened.

              You must NOT wear footwear which:


              (a) Are sandals, open toed, open heeled, wood bottomed, canvas or non-fastenable. (Does not apply in offices).


            (b) Have loose, thin, cracked, rippled, wedge or platform.type soles.

          (c) Have a metal plate or cleat on the sole or heel.

          (d) Have laces dangling far enough to be a tripping hazard.


              (e) Does not have a definite heel, have heels over two inches or elevated toes.

                                              3~75a-i


Thus the waering of safety shoes is now mandated, i.e., "required by the Safety Rule Book (S-7-C) " consistent with Article 8-A-1 and the sections of the Safety Rule Book dealing with such items as goggles and Electrical Protective Gloves. 5) No NRAB or Public Law Board authority has been cited which deals directly with the words "clothing" and "shoes".

 It follows therefore that it is Conrailg responsibility to provide the safety shoes. There is however a legitimate Company concern which must be addressed. As the Company's Brief put it:

 The Organization has contended that it sees very little difference between safety shoes and other-protective devices supplied by the Company, i.e., safety glasses, rubber gloves, etc. While these items have been supplied by Conrail, either by Company policy or through Rule 8-P_-1, the Carrier submits that these items are issued for wear only when the employees are on duty, on Company property, to be returned to Company custody at the end of the work day. To avoid employees wearing safety shoes on off time the Company can require that they be worn by the employees only while on duty. Even as a failure to wear safety shoes while on duty can be the basis for discipline, an employee wearing these shoes while off duty will also be committing an infraction.

 12
 3-7~-1

      Therefore the Board determines that Rule 8-A-1 of the June 16, 1981 Agreement requires the Company to provide safety shoes to the employees covered by the Agreement. These employees are to wear the safety shoes only when on duty. FINDINGS:

      Public law Board No. 3750, upon the record as a whole, finds and holds as follows:


                1. That the Carrier (Company) and Employe(s) involved in this dispute are, respectively, Carrier and Employe(s) within the meaning of the Railway Labor Act;


                2. That the Board has ,jurisdiction over the dispute herein;


            3. That the Agreement was violated as set ' forth in the OPINION.


                        AWARD


                The Claim is sustained as set forth in the OPINION.


                      sef P: Sirefman

                      Chairman


dJohn E. Hansen Robert 0'Neill~ :/ ~a~ ~/
      Organization Member Carrier Member


      Dated: March 5, 1986


                          13

Carrier's Dissent to Award No. 1 of bjc f P"~n No. 3750
                                    a'


ti~,S~... , .. . _ _-'.?.C
 f, D
 The neutral in this award became so e4iy8sisedlin his own brand of
 semantics that he failed to take into account different meanings
 of the words "clothing", "clothes" and "attire" as set forth in
 other accredited reference dictionaries and tomes concerning the
 meaning and use of words. He also went beyond dictionary
 definitions when he provided his own particular definition of
 "clothing". The Carrier will not engage in further semantics tb
 prove its point. The neutral overlooked the cardinal established
 rule of contract construction which holds that if a contract is
 susceptible to alternative constructions, one of which would lead
 to a reasonable or sensible result and the other to an absurd or
 ridiculous result, the contract must be construed in light of the
 former. There are numerous awards, such as 1st Division Award
 7454 (Malry), 2nd Division Award 1321 (Donaldson), 3rd Division
 Award 15011 (Wolf) and 4th Division Award 1224 (Coburn), which
 may be cited in support of the foregoing.

 The crux of the issue involves an interpretation of the term protective clothing as used in Rule 8-A-1. In reality, the dispute does not concern shoes per se but evolves around the requirement of a steel safety covering on a shoe. The employees have always been required to wear shoes and the carrier has never, by contract or otherwise, provided free shoes while working.

 The Board is well aware that the Carrier does provide $15.00 for each pair of safety shoes purchased, not to exceed two pair each calendar year, to cover the cost of the steel protective covering. The neutral sidestepped carrier's question, "Does Rule 8-A-1 require the Company to reimburse employees for the cost of safety shoes?" The answer to that question would have to be no.

 If the Board were to properly consider the different question posed by the employees, it would have to determine that the steel protective covering was protective clothing and, if so, how much is a proper allowance for the steel protective covering.

 The Board majority exceeded its authority when it determined safety shoes per se were protective clothing and that it is Conrail's responsibility to provide and pay for safety shoes to be used only when a signalman is on duty.

 The Carrier vigorously dissents to the absurd and ridiculous conclusion of the majority when they failed to consider a reasonable or sensible conclusion. This award will not establish a precedent in any other case.

                                      -` B. 3~sn


                                        7,,.w..~E ~y l TIC