Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28725
 THIRD DIVISION Docket No. MW-29367
 91-3-90-3-280
 The Third Division consisted of the regular members and in
 addition Referee Herbert L. Marx, Jr. when award was rendered.

 (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 Federal Railroad Safety Act of 1970 (45 U.S.C. 441) as amended by the Rail Safety Improvement Act of 1988 when, beginning September 14, 1988, it discriminated against and harassed Track Inspector Roy Griffith and AssLStant Track Inspector Albert Osterbind for providing testimony to the conditions on the Carrier's property [System File C-M-4740/12(89-80) COS].

 (2) The claim as presented by former General Chairman G. L. Hockaday on November 10, 1988 to Division Engineer J. E. Rahmes shall be allowed as presented because Division Engineer Rahmes failed to disallow the claim in accordance with Rule 21(h).

 (3) The Carrier further violated the Federal Railroad Safety Act of 1970 (45 U.S.C. 441) as amended by the Rail Safety Improvement Act of 1988, when, on November 16, 1988 it discriminated against and harassed Track Inspector Roy Griffith and As them under covert surveillance in retaliation for Messrs. Griffith's and Osterbind's testimony to the Federal Railroad Administration concerning unsafe conditions on the Car
(4) As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants R. Griffith and A. Osterbind shall each be allowed twenty thousand dollars ($20,000.00) for each incident of harassment or discrimination beginning
(5) As a consequence of the violations referred to in Part (3) above, Claimants R. Griffith and A. Osterbind shall each be allowed twenty thousand dollars ($20,000.00) for each incident of-harassment or discrimination beginning sixty (60) the Carrier ceases and desists from all harassment and discrimination against the Claimants."
 Form 1 Award No. 28725
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 FINDINGS:
 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 employes 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.

The Claim as stated above originated as two separate Claims, the circumstances of which are discussed further below. This matter is before the Board as a consequence of the Federal Railroad Safety Act of 1970, as amended in 1988 ("FRSA"). Provisions of the Act pertinent hereto are as follows:














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Thus, this matter is subject to resolution by the Board under the procedures of Section 153 of the, Railway Labor Act and the provisions of the Rules Agreement between the Carrier and the Organization. The matter was the subject of a Referee Hearing by the Board on January 28, 1991, the first date on which such Hearing could be arranged under current National Railroad Adjustment Board financial c
According to the Organization, a Claim addressed to the Division Engineer was initiated by the General Chairman under date of November 10, 1988, reading as follows:


Form 1 Award No. 28725
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 91-3-90-3-280
 'If any records come back from the FRA that
 have Track Inspector copy on them, we will have to
 take disciplinary action. They are personal, con
 fidential records. If the FRA wants to inspect
 the CSX records, they know that they have to go to
 Huntington. Don't get yourselves into a situation
 to do that. You should have known better if you
 did do Lt.'
 and:
 'Don't get yourselves into a situation to pre
 sent Company records to an outsider. Concerning
 both of you, so far as I am concerned, we don't do
 a thing about it. You were on your own time, but
 what I am saying is that if those records come up
 and FRA presents them to us, we will have to take
 some kind of disciplinary action. Do you under
 stand what I am saying?'
 and:
 'Don't get yourselves into a situation where
 you are leaving yourselves open for discipline.'
 and:
 'So I am saying don't get yourselves into a
 situation where you are going to force me to take
 some action OK?'
 Thus, the Carrier has threatened discipline in
 retaliation for provision of testimony to the FRA.
 In addition, Carrier has violated,tts obligations
 under the Act by:
 1. Discriminatorily retaining Roy Griffith's
 personal track inspection records in its control.
 All of the other Track Inspectors are allowed to
 keep their records in their,homes; and,
 ,
 2. Requiring Roy Griffith to make a special
 accounting for all overtime, in a manner which is
 not required of other Track Inspectors.
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 Page 5 Docket No. MW-29367
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 Therefore, this claim requests that the Carrier
 cease and desist from all harassment and discrim
 ination against Roy Griffith and Albert Osterbind,
 and for punitive damages as contemplated by the Act
 in the amount of $20,000.00 for each incident of
 harassment or discrimination. This claim should be
 regarded as continuing, dating from sixty (60) days
 prior to its service on the Carrier, and continuing
 until the relief requested is fully granted."

 The record includes a receipt for certified mail signed by a Carrier representative on November 14, 1988.

 On January 25, 1989, the General Chairman wrote to the Senior Manager, Labor Relations, indicating that he had received no response to the November 10, 1988 Claim and that "the Carrier is therefore in violation of Rule 21" and that "The claim should be paid in full as presented . . . .

 In the meantime, on January 12, 1989, the General Chairman initiated a second or supplementary Claim with the Division Engineer, as follows:






Form 1 Award No. 28725
 Page 6 Docket No. MW-29367
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 As a result of Mr. Griffith's and Mr. Oster
 bind's observation of your attempt at covert sur
 veillance, Mr. Griffith and Mr. Osterbind have
 suffered mental stress levels in excess of those
 normally associated with this employment.
 Thus, as a direct consequence of Mr. Griffith's
 and Mr. Osterbind's provision of testimony to the
 FRA, and as part of a pattern of harassment, which
 included those occurrences referenced in the Organ
 ization's claim of November 10, 1988, the Carrier
 has, through its agents or officials, harassed and
 retaliated against Mr. Griffith and Mr. Osterbind
 through surveillance, or the creation of an im
 pression of surveillance. Therefore, this claim
 requests that the Carrier cease and desist from all
 harassment and discrimination against Roy Griffith
 and Albert Osterbind, and for punitive damages as
 contemplated by Albeit Osterbind, and for punitive
 damages as contemplated by the Act in the amount of
 $20,000.00 for each incident of harassment or dis
 crimination. This claim should be regarded as con
 tinuing, dated from sixty (60) days prior to its
 service on the Carrier and continuing until the
 relief requested is fully granted."

 A timely denial response to this Claim was made by the Division Engineer on January 26, 1988.

 Further extensive handling on the property was made of both Claims, leading eventually to their referral to this Board for resolution as a combined Claim. Before furthe Claim, the Board must necessarily dispose of the Organization's procedural argument under Rule 21 as to the November 10, 1988 Claim:





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 91-3-90-3-280
 writing of the reasons for such disallowance. If not
 so notified, the claim or grievance shall be allowed
 as presented, but this shall not be considered as a
 precedent or waiver of the contentions of the Carrier
 as to other similar claims or grievances."

 In its Submission, the Carrier offers two responses: the first is that, "Neither (the] Division Engineer . . . nor the Carrier's Senior Manager of Labor Relations . . . received a copy of this November 10, 1988 Letter . . . at the time it was supposedly sent." The second is that such Claim, even when initiated as stated by the Organization, did not meet the 60-day time limit for claims filing. The Carrier points out that the Claim refers to events of September 14, 1988· To be valid, according to the Carrier, the Claim would have to be received by the Carrier by November 13, 1988. Even accepting the organization's certified mail receipt, the Claim was not received until November 14, 1
As to the Carrier's contentions, the Board notes first of all that a thorough review of the extensive correspondence between the parties fails to disclose that the Carrier ever raised either issue (non-receipt of the November 10 letter or its alleged untimeliness) on the property. This alone is sufficient to find the Carrier's assertions improperly before the Board. Nevertheless, other considerations also defeat the Carrier's stance. The record shows a proof of delivery to the Carrier on November 14, 1988; the Carrier never denied that the signature thereon was that of someone properly authorized by the Carrier to receive Carrier mail. Delivery of the letter thereafter to the addressee (the Division Engineer) was clearly within the Carrier's control and responsibility. As to meeting the 60-day time limit, the Board is guided by the thorough review of this question in Third Division Award 24440, which concluded as follows:


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 Page 8 Docket No. MW-29367
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 We do not accept the Organization's view that
 the claim was effectively presented merely by the act
 of writing the letter stating the claim. It must be
 shown that the letter was placed in accepted channels
 of communication. We note the fact that the letter
 was sent by certified mail and bears an earlier cer
 tification number than a similar letter also dated
 April 28, 1980, (covering another seniority dis
 trict) (which was actually received by the Carrier on
 April 29, 1980. Accordingly, we find that the claim
 before us was delivered to the U.S. mails on the day
 it was written, April 28, 1980, and that it was ef
 fectively presented at that time."

 In this instartce, while there is no proof of mailing on November 10, it must have been placed in the mails by November 13 at the latest in view of its acknowledged receipt on November 14. Thus, it is within the 60-day time limit. ,

 As a result, the Board is constrained by the clear direction of Rule 21 (h) to allow the Claim. However, the Board will find that the remedy of "punitive damages . . . in the amount of $20,000 for each incident of harassment or discrimination" will be discussed further below.

 The Board also notes the Carrier's discussion as to the extensive correspondence between the parties, the repeated conferences on the individual Claims, and the method used by the Organization to bring the Claims in combined form to the Board. S Carrier and the Organization had full opportunity to exchange information and argument and that there is no impairment to disposal of the matter by the Board.

 Consideration now turns to that portion of the combined Claim involved in the Claim initiated on of "covert surveillance" of the Claimants while in the course of their track inspection duties. During the claim handling procedure, the Carrier pointed out and the Organization conceded that the date in question was November 15, 1988, rather than November 16, 1988.

 Although the November 10, 1988 Cbaim is sustained on procedural grounds, it is necessary to,ceview the sudstance of that Claim as a preliminary to considerin Claim refers to a meeting of the Carrier's Division Engineer and Roadmaster with the Claimants as to their alleged furnishing tropies of track inspection reports to a representative of the Federal Railroad Administration. According to the Claimants, they were told that they would be subject to disciplinary action if "any records come back (to the Carrier] from the FRA that have Track
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 Inspector copy on them." The Claim further alleged that the Carrier had "discriminatorily" retai In addition, the Claim asserted that one of the Claimants had been the subject of a "special accounting of all overtime." Because this Claim is necessarily sustained on procedural grounds, as discussed above, further review of these allegations, with the Carrier's explanation and defenses, is not warranted here. This information is provided here as background to the timely answered January 12, 1989 Claim. In that Claim, the Organization argues that the Carrier "further retaliated" them. According to the Organization, this caused the Claimants to suffer "mental stress levels in excess of those normally associated with this employment."

 The Board finds the reported incident to be entirely lacking as a discriminatory or harassing act. First, there is no indication that any action was taken against the Claimants as a result of the observations or even any allegation that the Claimants were working in any improper manner. Second, the Carrier on the pr observations as well as a record of such observations for many employees. There is simply no basis to conclude that observations of the Claimants without warning or foreknowl
Based on the discussion above, the Board will make a denial Award in reference to the Claim as set forth on January 12, 1989.

 The Board now returns to the question of appropriate remedy as to the November 10, 1988 Claim which must be sustained on procedural grounds. Had it been appropriate to do so, the Board would have been required to consider the Carrier's position on the merlts that the Claimants' alleged act of providing the FRA with their copies of inspection reports was not the type of activity encompassed in FRSA Section 441 (a), quoted above. The Carrier would argue that such was not the filing of a complaint, instituting a proceeding, or testifying in such proceeding under the Act. Rather, the Carrier would argue that the warning about possible disciplinary ac6lan simply referred to what the Carrier considered unauthorized distribution of inspection reports (without any indication there However, since the Claim has been sustained on procedural grounds, it would be without purpose to review this position and the Organization's response.

 The Board must now address the reyedy proposed in Paragraph (4) of the Claim, namely, "$20,000 for each incident of harassment or discrimination beginning sixty (60) days pelor to November 10, 1988 and continuing until the Carrier ceases and desists from all harassment and discrimination against the Claimants." While Rule 21 (h) calls for the granting of a Claim "as presented," the Board cannot sus the FRSA, flies directly in the face of the Act's provisions.
 Form 1 Award No. 28725
 Page LO Docket No. MW-29367
 91-3-90-3-280

 Section 441 (c) (2) states that the Adjustment Board "may award the aggrieved employee reasonable damages, including punitive damage, not to exceed $20,000" (emphasis added). The Act further does not specify a maximum of $20,000 damages for "each incident." While the organization is in order to seek damages as specified in the Act, the Claim !s obviously excessive and insupportable in solely specifying the maximum award. The Board concludes, therefore, that it retains the right to determine the proper remedy, within the guidelines of the Act, and cannot delegate such function to the initiator of the Claim.

 Here, the Board determines that damages are inappropriate, even with the Claim in a sustained posture. Put simply, there is no evidence of actual discipline or impairment based on the September 12, 1988 discussion, the Carrier's decision to retai reports, or requiring accounting for overtime work. The September 12 "threat" was possible discipline if it were found that, contrary to rule, the Claimants had divulged Carrier records and if such were presented to the Carrier by the FRA. There is no inference he re ,of discharge or otherwise discriminating as prohibited by the FRSA.

 The Board concludes, therefore, that the sustaining of Claim Paragraphs (1) and (2) is sufficien















                          By Order of Third Division


Attest: i
 Nancy J. ~c - Executive Secretary

 Dated at Chicago, Illinois, this 28th day of March 1991.