OPINION OF BOARD: Claimant was advised by notice dated February 7, 1969 to report to the office of Superintendent of Transportation on February 11, 1969 at 2:00 P. M. for hearing to develop the facts and determine your responsibility, if any, "in connection with the report that Telegrapher D. R. Bonner at Sherman, Texas, approximately 6:00 A. M., January 10, 1969, advised Dispatcher C. E. Enyart that there was a track indication on Frisco track at approach to South Sherman Junction and that Roadmaster Weise had instructed him to hold No. 39, Engine 25, at Sherman, Texas until track could be inspected for broken rail, and that after this notification Dispatcher Enyart instructed Mr. Bonner to let Train 39, Engine 25, depart Sherman, Texas, which is in violation of rules 'General Notice', 'B', 101 and 986 of the Transportation Department, effective March 1, 1957."
At the outset Carrier raised a procedural defect alleging that the Organization failed to handle this dispute in the usual manner up to and including the chief operating officer of the Carrier designated to handle such disputes; that the Organization bypassed the Superintendent of Transportation, who issued the discipline, before appealing to the Division Manager.
Examination of the record shows that Carrier waived its right to object to the Organization procedures of appeal followed in this instance. This is clearly seen in the letter of Carrier's Division Manager, H. C. Bitner, dated February 10, 1970, addressed to Carrier's Director of Labor Relations, Mr. T. P. Denton, and marked Carrier's Exhibit E, when Mr. Bitner stated:
In regard to the merits of the case, the Organization contends that Carrier resorted to unwarranted dismissal of Claimant as a method to compel a reduction in force in violation of the Agreement; that Claimant did not violate any of Carrier's rules and especially those rules cited by Carrier as basis for discipline.
It is undisputed that Claimant did not obey the specific instructions of Roadmaster Weise to hold Train No. 39 at Sherman for a track indication. Claimant attempts to excuse compliance with the Roadmaster's orders on the grounds that Rule 986 gave him the choice of two methods in notifying trains of defective track, namely (1) by train order, or (2) by any other method as necessary, and that Claimant chose method (2) as best under the circumstances because he could notify the location, possible trouble and to instruct the train to ascertain it was safe before passing over the track, and thus Claimant complied with Rule 986.
While Claimant's responsibility was to see to it that there are no unnecessary train delays and while under normal conditions he could select the appropriate method as necessary to insure safely under Rule 986, nevertheless, Claimant was faced with a specific order from a superior officer of Carrier to halt Train No. 39 at Sherman. Permitting an employe to flagrantly refuse to obey an order of a superior officer could lead to chaos and a serious disruption in the operation of a railroad. Failing to follow such order herein subjected Claimant to discipline. Since Claimant was returned to service on April 18, 1969 with all rights unimpaired, restoration to service is moot.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934.;