IN THE MATTER OF
LOCAL UNION 230 (MANOS, JULIAN,
AND OLIVEIRA)
DOCKET NO
98-36P
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
husbands did."
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
sold 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-President.
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
Enterprise: Woman."
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 due to job
assignment and "cash flow." Wayne Silva has primary
responsibility of hiring and firing employees and is also responsible
for business development.
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.
CONCLUSIONS
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 performsnearly all major management
functions of Sil/Con.
DECISION:
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
re-run election.
s/PETER F. VAIIRA
PETER F. VAIRA
INDEPENDENT HEARING OFFICER
Date. May 12,1999
Local Union 230
Wayne Silva
Robert A Cheverie, Esquire
Stephan Manos
Gene Julian
John Oliveira