(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated the Agreement when it called and used junior Trackman B. J. Thiebeau to perform overtime service on January 21 and 22, 1984, instead of called and using Trackman B. W. Penny who was senior, available and willing to perform that service (System Docket CR-808).

 (2) Claimant B. W. Penny shall be allowed twenty-two (22) hours of pay at his time and one-half rate and six and one-half (6 1/2) hours of pay at his double time rate in effect on the claim dates."

 OPINION OF BOARD: An employee junior to the Claimant was called for overtime
 work on January 21-22, 1984. The Claimant seeks pay for
 the lost overtime work, and the organization cites Rule 17 in his support.
 Rule 17 reads as follows:



The Carrier argues that this Rule was not cited in the claimhandling procedure on the property a the Carrier was aware throughout of the basis of the Claim. Indeed, no question was raised as to the order; the dispute rests on another ground, to be discussed further below. The Claim is valid even if the clearly understood Rule was not cited until presentation to the Board.

 The dispute is whether or not the Carrier made sufficient effort to call the Claimant. The initial response of the Carrier, through its Division Engineer, was that "an attempt was made to reach you by telephone, and the telephone company reported your phone being out of order." (This is in contrast to the Carrier's lat had been made.) The Claimant stated he was at home during the days in question. A report from the te evidence of the telephone being out of order.
                        Docket Number MW-26459


Rule 17 imposes on the Carrier the order of calling employees for overtime work. Its affirmative defense is not to deny the Rule's applicability but to state that the lacking is any evidence of the Carrier's contention, such as a record as to the time of placing the call or calls. In this instance, the burden is on the Carrier to show that it complied with the Rule. In view of the Claimant's assertion to the contrary, the Carrier requires further demonstration in proof of its contention.

 Public Law Board No. 2366, Award No. 27, citing other Awards, is to the same effect.

 The Carrier also argues that, if the Claim is sustained, the Claim for punitive pay is inappropriate and that pay should be granted at straight time. This is contrary to the great weight of previous Awards of this Division, and the Claim will b
        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


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;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                        A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest:
        Nancy J e r - Executive Secretary


Dated at Chicago, Illinois, this 24th day of August 1987.