COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


William Mungai and Intra America
Motor Carriers,

Petitioners

v.


Office of the Attorney General -
Fair Labor Division

Respondent



Docket No. LB-08-286
Citation No. WH080079

Appearance for Petitioner:

William Mungai

26 Grace Street
Lowell. MA 01851

Appearance for Respondent:

Thomas M. Johnson

Assistant Attorney General
OAG - Fair Labor Division
One Ashburton Place
Boston MA 02108

Administrative Magistrate:

Bonney Cashin

Summary of Decision

Intra America Motor Carriers did not file an appeal. Accordingly, the civil citation that the office of the Attorney General issued to it is final. William Mungai did not present any evidence or argument on his behalf. He failed, thus, to demonstrate that the citation was erroneously issued to him.

DECISION

Introduction

On April 22, 2008, the Office of the Attorney General (OAG) issued a civil citation to William Mungai and to Intra America Motor Carriers for a failure to pay wages to an employee, Orlando Ithier. The citation required Mr. Mungai and Intra America Motor Carriers to pay $4,250.00 in restitution and a $900.00 civil penalty. Mr. Mungai appealed, pursuant to G.L. c. 149, § 27C (b) (4).

Following prehearing proceedings, I held a hearing on January 20, 2009 at the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. Mr. Mungai moved to continue the hearing until a later date, arguing that he needed legal counsel. I denied the motion because it came too late. Mr. Mungai did not seek leave to continue the hearing prior to January 20. He could not explain why, nine months after the citation was issued, he had not sought legal counsel.

The OAG offered the testimony of two witnesses, Edward Minchello, an inspector with the Fair Labor Division, and Mr. Ithier, who had filed a complaint with the Fair Labor Division for non-payment of wages. Mr. Ithier's testimony was translated from Spanish into English by Awilda Perez. I admitted into the record eight exhibits previously filed by the OAG. Mr. Mungai did not offer any witness testimony or exhibits into evidence, although he had been ordered to file a witness list and copies of proposed exhibits by November 12, 2008. In fact, Mr. Mungai failed to participate in the hearing at all. Mr. Mungai would not question witnesses, examine documents, or answer my questions. The record closed following the hearing.

Following the presentation of its case, the OAG moved to dismiss the appeal. It argued that by refusing to participate in the hearing, Mr. Mungai failed to prosecute his appeal. I took the motion under advisement. I now deny it as moot because I have decided the appeal on the merits.

Findings of Fact

Based on the evidence in the record and on an assessment of the credibility of the witnesses who appeared before me, I make the following findings of fact:

1. Intra America Motor Carriers, a business that transports vehicles from one part of the country to another, is located at 14 Smith Road, Sutton, MA. (Exh. 8; Ithier Test.).

2. The owners of Intra America Motor Carriers, as identified by Mr. Ithier on his complaint form, are "Steve and Frances." (Exh. 2).

3. Mr. Ithier and Mr. Mungai met through a mutual friend. (Ithier Test.).

4. Mr. Ithier transported vehicles in Mr. Mungai's truck to various locations in Massachusetts and other states. (Ithier Test.).

5. A secretary with Intra America Motor Carriers would tell Mr. Ithier where to deliver the vehicles. (Ithier Test.).

6. Mr. Ithier began work as a driver on June 25, 2007 and worked for approximately three to four months. (Ithier Test.).

7. Mr. Ithier was not paid for his work for the period August 1, 2007 to October 1, 2007. (Exh. 2).
8. According to his agreement with Mr. Mungai, Mr. Ithier was to be paid 20% of the sale price of each vehicle. (Ithier Test.).

9. In order to receive payment, Mr. Mungai required Mr. Ithier to submit to him a "vehicle inspection report" for each vehicle he delivered. (Ithier Test.; Exh. 8).

10. The vehicle inspection report, a form with the name, address, and telephone and fax numbers of Intra America Motor Carriers at the top, identified the vehicle make and model, the delivery destination, vehicle price, and driver's signature. (Ithier Test.; Exh. 8).

11. Mr. Ithier compiled a separate list of the vehicles he transported, showing each vehicle's make and model, the delivery destination, the cost of the vehicle, and the amount owed to the driver. (Exh. 8).

12. Mr. Ithier did not receive payment for the vehicles identified on his list. (Ithier Test.).

13. Based upon his calculations, Mr. Ithier is owed $4,250.00. (Exh. 2 and Ithier Test.).

14. On April 22, 2008, the OAG issued a civil citation to Intra America Motor Carriers and to Mr. Mungai individually. (Exh. 1).

15. The citation ordered Mr. Mungai and Intra American Motor Carriers to pay $4,250.00 in restitution and assessed a $900.00 civil penalty, which was computed based on a formula that considers the amount of wages owed, the number of employees, and whether there are prior complaints against the employer. (Minchello Test.; Exh. 1).

16. Mr. Mungai filed an appeal postmarked April 29, 2008, which was received by the Division of Administrative Law Appeals on April 30, 2008. (Appeal dated April 28, 2008).

Conclusion

Mr. Mungai filed his appeal on April 30, 2008, eight days after it was mailed to him. An appeal must be filed within ten days of receipt. G.L. c. 149, § 27C (b) (4). The earliest date on which Mr. Mungai could have received the appeal is the day it was issued. His appeal, therefore, is timely.
Intra America Motor Carriers did not appeal the citation issued by the OAG. Mr. Mungai's appeal was brief and to the point. He stated: "I wish to appeal this citation. I am putting together information and documents in support of my appeal. I await further instructions from you." (Appeal dated April 28, 2008). The language used plainly refers only to Mr. Mungai. He did not file an appeal on behalf of Intra America Motor Carriers. No other document purporting to be an appeal is in the record. During pretrial proceedings and at the hearing, Mr. Mungai did not claim to be representing Intra America Motor Carriers.

Consequently, I conclude that Intra America Motor Carriers did not file an appeal and the citation the OAG issued to it is final.

G.L. c. 149, § 148 requires that employers pay their regular employees within five to seven days following the completion of a weekly or bi-weekly pay period and pay "casual employees," that is, those who have worked for a period of less than five days, within seven days of the completion of their work. The OAG may issue a civil citation under G.L. c. 149, § 27C (b) (1) for violations of c. 149, § 148. An aggrieved person may appeal the citation to the Division of Administrative Law Appeals. G.L. c. 149, § 27C (b) (4). An Administrative Magistrate may affirm the citation or, "if the aggrieved person demonstrates by a preponderance of evidence that the citation … was erroneously issued, vacate, or modify the citation …." G.L. c. 149, § 27C (b) (4).

Mr. Mungai had the burden of demonstrating by a preponderance of the evidence that the citation was erroneously issued to him. Mr. Mungai failed to present any evidence on his behalf. Accordingly, he failed to show that the citation was issued to him in error. Under c. 149, § 27C (b) (4), I may affirm the citation.
Mr. Mungai had the burden of proving error, yet stated his intent not to present a case after I denied his motion to continue. The OAG nonetheless presented its case. See 801 CMR 1.01 (10) (e). This was reasonable in light of Mr. Mungai's unwillingness to participate and in light of the uncertain relationship between Mr. Mungai and Intra America Motor Carriers. The citation required Mr. Mungai and Intra America Motor Carriers to pay $4,250.00 in restitution and a $900.00 civil penalty. Based on the record before me, Mr. Mungai agreed to pay Mr. Ithier 20% of the price of each vehicle he transported. Mr. Mungai's relationship with Intra America Motor Carriers is not clear from the record. At the same time, there is little evidence in this proceeding that Mr. Ithier and Intra America Motor Carriers had an employer-employee relationship. Nonetheless, Intra America Motor Carriers failed to protect its rights by filing an appeal. Consequently it is jointly liable with Mr. Mungai for the restitution and civil penalty owed.

DIVISION OF ADMINISTRATIVE LAW APPEALS

__\s\__________________________________________
Bonney Cashin
Administrative Magistrate

Dated: July 28, 2009