Ames Construction Company

Plain-English summary

Oliver J. Boutet filed a discrimination complaint against Ames Construction Company under section 105(c) of the Mine Act. The Commission requested additional information, but Boutet did not respond to the request or later orders to show cause. The orders were returned after attempted certified-mail service, and a telephone contact attempt was unsuccessful. Judge Paul Merlin dismissed the complaint under the Commission's certified-mail service rule.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c) and 29 C.F.R. § 2700.7(c)
• Outcome: The discrimination complaint was dismissed.
• Key point: Under the cited Commission rule, service was complete upon mailing by certified mail, even though the mailings were returned.

Full text (FMSHRC public release)

AMES CONSTRUCTION COMPANY
December 15, 1995
WEST 95-373-DM

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730 K STREET N.W., 6TH FLOOR

                   WASHINGTON,  D.C.  20006


                      December 15, 1995

OLIVER J. BOUTET, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. WEST 95-373-DM
AMES CONSTRUCTION COMPANY, : WE MD 95-07
Respondent :
: Barrick Goldstrike Mine

                       ORDER OF DISMISSAL

Before: Judge Merlin

  On May 15, 1995, the complainant, Oliver J. Boutet, filed

with the Commission a complaint of discrimination under section
105(c) of the Federal Mine Safety and Health Act of 1977. On
May 17, 1995, the Commission sent Mr. Boutet a letter informing
him that additional information was needed to be filed in order
for his case to be processed.

  Having received no response to the May 17 letter, an order

to show cause was issued to Mr. Boutet on June 27, 1995,
directing him to submit the information. Mr. Boutet was told
that if he failed to respond to the June 27 order his complaint
would be dismissed. The order was sent to Mr. Boutet certified
mail return receipt requested but was returned to the Commission
marked unclaimed.

  On October 18, 1995, a second order to show cause was sent

to Mr. Boutet because a review of the file showed that both the
May 17 letter and June 27 order to show cause were mailed to
Mr. Boutet at the address listed on the letter that had been sent
by MSHA advising Mr. Boutet that no discrimination occurred. This
was an error because Mr. Boutet's letter of complaint to the
Commission lists a different address. Given the discrepancy in
the mailing address, a new show cause order was issued and the
Complainant was furnished with copies of the May 17 letter and
the June 27 show cause order. The October 18 order was sent
certified mail return receipt requested but was returned to the
Commission marked "Attempted not known, Insufficient address".
A handwritten notation on the envelope indicates that a suite
number was necessary for this address. On December 13, 1995,
my law clerk attempted to contact Mr.Boutet by telephone.
However, no phone number was listed for him in the Reno, Nevada
area.

  Under Commission  rule  2700.7(c),  29 C.F.R. § 2700.7(c),

service is complete upon mailing when sent by certified mail.
See, Matter of Park Nursing Center, Inc., 766 F.2d 261
(6th Cir. 1985); Cf. Fed. R. Civ. P.4(c)(2)(C)(ii), 5(b).

  In  light  of  the  foregoing, it  is  ORDERED  that  the

discrimination complaint be DISMISSED.

                           Paul Merlin
                           Chief Administrative Law Judge

Distribution: (Certified Mail)

Mr. Oliver Boutet, 1150 Terminal Way, Reno, NV 89502

Ames Construction Company, 2001 Griffin, Carlin, NV 89822

/gl