OFFICE OF THE INDEPENDENT HEARING OFFICER

LABORERS INTERNATIONAL UNION OF NORTH AMERICA

IN THE MATTER OF

LOCAL UNION 230 (MANOS, JULIAN,

AND OLIVEIRA)

DOCKET NO

98-36P

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 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


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