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.
At the time of this dispute, the Claimant, a Foreman and two other Signalmen were working in Hamilton, Ohio, and staying at a Holiday Inn in Fairfax, Ohio.
On February 4, 1990, Claimant contacted an organization Representative, and informed him that the food at the Holiday Inn was "of poor quality." The organization Representative contacted the Foreman who stated that the "food is okay." Claimant sent a subsequent letter to the organization Representative stating that "the food is still inferior." This letter was also signed by two other Signalmen. Form 1 Award No. 29861
The Organization Representative then contacted the Director Signal Maintenance and Construction, and asked him to send someone to Fairfax to investigate the complaint. On February 15, 1990, the Director sent the General Supervisor of Signals to Hamilton, Ohio.
According to witnesses, the General Supervisor made no effort at all to investigate and deal. objectively with the gang's complaint about the food. Instead, upon arrival at the gang bungalow the General Supervisor initiated a confrontation with the following proclamation: "There is nothing wrong with the food, and that is the end of it." The General Supervisor also told Claimant that he was a "troublemaker" and made other disparaging remarks concerning claimant's "fitness as a maintainer." Claimant reasserted that the food was of poor quality and insisted that something had to be done about it. As the tenor of the conversation deteriorated, Claimant stated that he did not believe that the Foreman had spoken to anyone about the food problem and therefor the Foreman was a "liar." Claimant also told the General Supervisor that he was "incompetent." According to witnesses, the verbal confrontation lasted approximately 30 minutes.
On February 26, 1990, Claimant was charged with being "argumentative and calling Foreman Dilbeck a liar and calling General Supervisor Peterson incompetent." Following a hearing, Carrier imposed a ten day suspension on Claimant for "unacceptable conduct."
The organization appealed the discipline arguing that "Mr. Reeder was not being insubordinate, he was only stating his feelings to Mr. Peterson and that Mr. Dilbeck was not relaying the food/meal problem to Mr. Peterson." Carrier stated that "there is sufficient evidence in the transcript proving the charges against the Claimant. 11 Further correspondence failed to resolve the dispute which is now before this Board for adjudication.
A careful review of the transcript reveals that Claimant must bear some responsibility for his unacceptable behavior but that culpability is mitigated because he was provoked and goaded into his intemperate verbal remarks by the equally unacceptable conduct of Supervisor Peterson. The Board find's the testimony of the Foreman regarding the incident to be objective and instrutive concerning the relative behavior of the General Supervisor and Claimant:
It is clear that the Claimant's behavior was unacceptable. However, it is equally clear that the General Supervisor also behaved inappropriately to provoke Claimant's response by being unnecessarily confrontational and escalating the dispute. Therefore, the Carrier is directed to redu ten to five days.