OFFICE OF THE INDEPENDENT HEARING OFFICER
LABORERS INTERNATIONAL UNION OF NORTH AMERICA
IN THE MATTER OF
LOCAL UNION 230 (MANOS, JULIAN,
ORDER AND MEMORANDUM
On February 10, 1999, pursuant to
the above-captioned election protest the IHO
ordered a rerun of the 1998 election for the offices of Business Manager and the members
of the Executive Board. Based upon the information of record at that time, the IHO was
unable to rule on the eligibility of Wayne Silva ("Silva") to run as a candidate for
Executive Board member. The IHO ordered an independent investigation into the
circumstances of Silva's employment status. Philip S. Deming of Philip S. Deming &
Associates conducted the investigation on April 21-23, 1999 at the request of the IHO.
Deming reported his findings to the IHO. On April 29,1999, the IHO issued a summary
order holding that Silva was not eligible to run in the rerun election. This Order and
Memorandum supplements the Order of April 29, 1999.
The issue before the IH0 is whether
Silva is working at the calling as a laborer or
whether he is actually an independent contractor and therefore prohibited from
participating in union affairs by Article VII, Section 6, Uniform Local Union Constitution.
FINDINGS OF FACT
1. Prior to 1990, Patricia R- Silva
(Wayne Silva's wife), Maria J. Flood, and Leisa Z.
LeConche formed Sil/Con Corporation to provide masonry and construction repair
services, Maria J. Flood is the wife of Joseph Flood, a Local 230 member. Leisa Z.
LeConche is the sister-in-law of Charles Le Conche, Business Manger of Local 230.
2. Patricia Silva is a high school
graduate with limited business or construction
experience. At her interview she stated that she has no trade skills relating to the work of
Sil/Con. Patricia Silva stated that none of the founders of the corporation bad prior
experience in this type of business. Patricia Silva stated, "We all knew what our
3. On April 6, 1990, a Certificate
of Incorporation for Sil/Con was filed with the
Connecticut Secretary of State. The shareholders were Patricia Silva (40 percent
shareholder), Maria J. Flood (40 percent shareholder), and Leisa Z. LeConche (20 percent
shareholder). Patricia Silva invested $5,000 in the corporation, paid from a joint bank
account, which she and her husband owned,
4. On January 9, 1992, Leisa J.
LeConche 3old her outstanding stock to Patricia
Silva and Maria J. Flood, and resigned as a director of the company. At the meeting,
Kristen Silva, Patricia Silva's daughter was elected as Secretary of the Corporation.
Patricia Silva remained President of the Corporation, and Maria J. Flood remained Vice-
5. Sil/Con's place of business is
114 Macktown Road, Windsor, Connecticut. The
office is in the basement of a home owned by Wayne and Patricia Silva.
6- On April 23, 1998, the State of
Connecticut issued Sil/Con a Certificate of
Eligibility under the Small Contractor Set Aside Program, as a "Minority Business
7. Wayne Silva is employed by
SiI/Con- He classifies himself as a "Laborer
Foreman." In reality Wayne Silva and his son, Wayne Silva, Jr., are responsible for
preparing cost estimates of any job list by Sil/Con. He is responsible for overseeing
personnel on the work-site projects. He performs labor tasks, including operating
equipment. Wayne Silva is compensated by means of a weekly salary; however, his
wages vary duo to job assignment and "cash flow." Wayne Silva has primary
responsibility of hiring and firing employees and is also responsible for business
8. Patricia Silva operates the
Sil/Con office. She stated that she is responsible for
responding to proposals, purchasing insurance, purchasing auto supplies, completing
payroll records and assisting the outside accountant in tax matters. Essentially, she runs
the back office.
9. Sil/Con pays into the LIUNA
health and welfare program. Patricia Silva is
covered by the program because she is the spouse of Wayne Silva.
1. Wayne Silva plays a major role in
the operation of Sil/Con. He is essential to the
company's operation. The strategic direction of the company is controlled by Wayne
Silva. The company relies upon his knowledge and experience of the industry and his
relationship to Local 230. He hires and fires employees- He, and his son bid the jobs.
Wayne Silva is responsible for developing new business
2. Patricia Silva, the company
president is essentially the bookkeeper, with little
authority, or expertise in the construction matters.
3. Patricia Silva is covered by
Wayne Silva's health insurance. Normally, the
employer is covered by the company policy.
4. It is clear that Wayne Silva is
not merely an hourly employee. His wages vary
depending upon the cash flow of the company.
5. Based upon the foregoing factors,
Wayne Silva is a contractor who performs
nearly all major management functions of Sil/Con.
The Election Protest of Manos and
Julian is GRANTED. Silva is an independent
contractor and is not working at the calling. Therefore, he. is not qualified to run in the
PETER F. VAIRA
INDEPENDENT HEARING OFFICER
Date. May 12,1999
Local Union 230
Robert A Cheverie, Esquire