The employes' claim in (b) of their Statement of Claim, therefore, has no merit.

As to the merits of the claim itself, this carrier did not engage a contractor to install the conduits at Dallas. This expressway was a State project and it was the obligation and right of the State to install the conduits themselves so as not to interfere with the building of the expressway on State property. The conduits did not become the property of the carrier, but ownership remained with the State with permission for our use and the railroad did not pay the State for the installation. Our own employes inserted the signal cables. The claimants named were fully employed and lost no earnings in this instance.

We submit on basis of the facts in this case, there was no violation of the agreement nor have the employes produced any evidence of loss by the claimants, nor basis, under the rules, and we respectfully request denial of the claim.

It is hereby affirmed that all of the foregoing is, in substance, known to the Organization's representatives.

OPINION OF BOARD: The Employes contend that Carrier did not comply with provisions of Article V, 1954 National Agreement in that their letter of September 26, 1958, declining the appeal dated July 28 was not within 60 days. We hold that the declination was in time under the often cited rule of omitting the first day and counting the last.

The question here is whether the Carrier violated the agreement when it contracted or permitted an outside contractor to install two 3 inch in diameter conduits of pipe under the road crossings at East Frontage Street and West Frontage Street, Dallas, Texas. The conduits were underground and were used for housing the underground signal cables and wires which run from the light signals to the relay case.

The Scope Rule involved is as follows:

"This agreement covers the rates of pay, hours of service, and working conditions of all Signal Department employes classified herein engaged in the construction, repair, installation, inspection, testing or maintenance, including such work performed in the railroad's Signal Department Shops, of the following:

. . . highway crossing protective devices, other than mechanically(connected or pneumatic highway crossing gates.

. iron or clay conduit systems, transformers, arresters, distributing blocks, track bonding, wires or cables, including cables, lines and fixtures which are a part of and used for operation of signal or interlocking systems installed on poles or in ducts which are not a part of such systems."

It would appear from the record that the signals and conduit were on the right of way of both Carrier and State of Texas Highway Department. The signals were the property of the Carrier and constructed by its employes and the wires that connected the signals were also the property of the Carrier and were installed by its employes through the conduit.

There is no question but that the disputed work is within the scope of the effective agreement and that as a general rule the Carrier may not contract out work embraced within collective bargaining agreements unless that work comes within certain definite exceptions.

Such exceptions are special skills, equipment or material-Awards 7805, 6492. Or where the work is beyond the capacity of the Carrier's employes or is of such complexity and magnitude they could not perform it. Award 7805Carey and awards therein cited. Award 6492-Whiting. The burden of proving such exceptions is on the Carrier. Award 4671-Stone, 6109-Messmore.

Carrier makes no claim to any of these exceptions and offers no proof to establish such right to farm out the work. Carrier simply contends that it had nothing to do with constructing the conduits and that the sovereign State of Texas did that part of the work. It is admitted, however, that the plans or blue prints for its construction were prepared by Carrier and complied with, which certainly indicates some understanding between the Carrier and State of Texas. The Award 6499 (Whiting) cited by Carrier is not in point on facts. In that case the City of Greenwood, South Carolina, found the switching operations of the Carrier in its Civic Center to be unbearable. The City prevailed upon the Carrier to move terminals and depots out of the city square. The Carrier resisted all efforts of the city until the city entered into a contract to pay all costs of the removal and building of new facilities after which title thereto would be conveyed by the city to the Carrier. The city initiated the matter, paid for new location and all construction. It was new construction of great magnitude. Here Carrier initiated and carried out the construction of the signal by its employes on its right of way, paid far it, did everything with the exception of putting the pipe under the road. The Carrier had employes, tools, time and material for that part of the work and those facts stand unrefuted.

The employes who did all the work of constructing the signal were entitled to do the work of laying the conduit, also; such was the purpose of the agreement. The Carrier is not entitled to whittle away work covered by the

agreement, and which, as here, was usually performed by signalmen. If the .construction of the signals and putting the wires through the conduits is covered by the agreement, it is difficult to see how construction of the conduit would be different. Award 7051 (Wyckoff), 5090 (Coffey), 5136 (Coffey).

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.

AWARD