CHAPTER 259

AN ACT CREATING A DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS IN THE STATE, TRANSFERRING THE UNEMPLOYMENT COMPENSATION COMMISSION TO SAID DEPARTMENT, ESTABLISHING A MEDIATION SERVICE, TRANSFERRING THE INDUSTRIAL ACCIDENT BOARD TO SAID DEPARTMENT, ABOLISHING THE LABOR COMMISSION OF DELAWARE AND TRANSFERRING THE POWERS AND DUTIES THEREOF TO SAID DEPARTMENT, AND PRESCRIBING THE POWERS AND DUTIES OF SAID DEPARTMENT AND ITS DIVISIONS; PROVIDING FOR PUNISHMENT FOR VIOLATIONS AND ENFORCEMENT.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Chapter 1, Title 19, Delaware Code, is repealed and a new Chapter 1, enacted in lieu thereof.

CHAPTER 1. DEPARTMENT OF LABOR AND INDUSTRIAL

RELATIONS

§ 101. Definitions; exclusions

(a) As used in this Chapter—

"Board" shall mean the Industrial Accident Board. "Service" shall mean the State Mediation Service.

"Commission" shall mean Unemployment Compensation Commission.

"Department" shall mean the Department of Labor and Industrial Relations created and established by Section 102 of this Chapter.

"Director" shall mean the Director of the State Mediation Service.

"Employer" includes any person, excepting those provided for in subsection (b) of this Section, acting directly or indirectly in the interest of any employer in relation to any employee but shall not include the United States or the State of Delaware or any political subdivision thereof.

"Person" means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.

"Member" means a member of the Department of Labor and Industrial Relations.

(b) Persons in the following occupations and employers of persons engaged in these occupations to the extent thereof, shall not be deemed to be within the scope of this Chapter and are hereby specifically excepted from all the provisions of this Chapter; babysitting, domestic help, agriculture, fishing and hunting.

§ 102. Establishment of Department

(a) There is hereby established a Department of Labor and Industrial Relations consisting of five members who shall be appointed by the Governor, by and with the advice and consent of the Senate, at least two of whom shall be members of one of the two major political parties and at least two of whom shall be members of the other of the two major political parties. One member shall be a resident of Sussex County, one a resident of Kent County, one a resident of New Castle County outside the city of Wilmington and one a resident of the State at large. Such members shall have been residents of the State for at least five years immediately prior to their appointment, and removal of residence from the jurisdiction for which the appointment was made shall disqualify the member from the Department.

() One member shall be appointed for a term to expire on June 30, 1962; one for a term to expire on June 30, 1963; one for a term to expire on June 30, 1964; one for a term to expire on June 30, 1965; and one for a term to expire on June 30, 1966. Thereafter, members shall be appointed for a term of five years.

(c) Vacancies in the Department caused by such removal of residence or for any other cause shall be filled by appointment by the Governor, by and with the advice and consent of the Senate, for the unexpired term.

(d) During his term of membership in the Department, no member shall serve as an officer or committee member of any political party organization.

(e) The Governor may at any time, after notice and hearing, remove any member for gross inefficiency, neglect of duty, malfeasance or nonfeasance in office.

(f) The Department shall have a chairman who shall be designated by the Governor from among its members. Whenever the term of the Chairman expires or whenever there is a vacancy in such office for any cause, the Governor shall designate a new Chairman.

(g) Any four members shall constitute a quorum. No vacancy shall impair the right of the remaining members to exercise all of the powers of the Department.

(11) The members shall receive no compensation for their services, other than travel expenses.

§ 103. Office; hearings; expenses; Division of Department; employees; salaries

(a) The Department shall keep such suitable office as shall best meet the convenience of the Department and the public. The Department or its authorized representative may hold hearings at any place within the State that the convenience of the Department and of the parties in interest may require.

(b) In addition to such other sections or divisions as may be otherwise provided by law, the members of the Department may set up within the Department such sections or divisions as they may deem necessary for the exercise of the powers and the performance of the duties of the Department. The Department, subject to the provisions of any law applicable to the appointment or compensation of employees of the State of Delaware, is hereby authorized and empowered to appoint such executive secretaries, assistants, accountants, attorneys and other employees as may be necessary for the exercise of the powers and the performance of the duties of the Department.

§ 104. Inclusion of Unemployment Compensation Commission within Department

The Unemployment Compensation Commission referred to in Chapters 31 and 33 of this Title, and all of its records, property and personnel are hereby transferred to and included within the Department as a constituent Commission therein. The Unemployment Compensation Commission as a separate division within the Department, shall continue to perform such functions and discharge such duties as, prior to the enactment hereof, were conferred or imposed upon it by law.

§ 105. Inclusion of Industrial Accident Board within Department

The Industrial Accident Board referred to in Chapter 21 of Title 19, Delaware Code, and all of its records, property and personnel are hereby transferred to and included within the Department as a constituent Board therein. The Industrial Accident Board, as a separate division within the Department, shall continue to perform such functions and discharge such duties as, prior to the enactment hereof, were conferred or imposed upon it by law.

§ 106.Abolition of the Labor Commission of Delaware

The Labor Commission of Delaware, mentioned in Chapter 1 of this Title as the same existed prior to the passage of this Act, is hereby abolished. The Department shall succeed to all of the powers and duties of the Labor Commission of Delaware; and all of the records, property and rights to appropriated money of the Labor Commission of Delaware are hereby transferred to the Department. Nothing contained herein shall affect any right, claim, duty or liability accrued or existing prior to the effective date of this Act.

§ 107. Appointment of officials and employees; Reports

The Department may, by a majority vote of the whole Department, make all appointments of officials or employees which may be made under any law relating to the conditions, regulation, or inspection of minor children, or the condition, regulation or inspection of labor of females in this State. The officers or employees so appointed shall make quarterly reports to the Department.

§ 108. Removal of officials and employees

When, in the opinion of the majority of the whole Department, any official or employee appointed or engaged in the Department does not perform his duty in a satisfactory and efficient manner, the Department may remove the official or employee and appoint a new official or employee in his stead. No official shall be removed from office until he has had a fair and impartial public hearing, and has been furnished with a copy of the charges and specifications of complaints upon which the action of the Department has been based, if such charges and specifications are requested. This Section shall not apply to the members of the Industrial Accident Board nor to any member or employee of the Unemployment Compensation Commission.

§ 109. State Child Labor Inspector; appointment; term; vacancy; duties

(a) The Department shall appoint some suitable person to be the State Child Labor Inspector, who shall serve for a term of four (4) years from the first day of May in the year of his appointment, and whose duties shall be as prescribed in this Chapter and Chapter 5 of this Title.

(b) Any vacancy in the office of the State Child Labor Inspector for any cause other than expiration of term shall be filled by the Department for the balance of the unexpired term.

(c) The State Child Labor Inspector shall have no other gainful occupation than the performance of his duties as set forth in this Chapter and Chapter 5 of this Title.

(d) The State Child Labor Inspector may visit and inspect at any time any establishment in this State to ascertain whether any children are employed therein contrary to the provisions of Chapter 5 of this Title and the Inspector shall make complaint against and shall prosecute any person violating any of the provisions of such Chapter.

§ 110. Labor Inspector; appointment; term; duties

(a) The Department shall appoint one Labor Inspector to carry out the purposes of Chapter 3 of this Title. The term of office of the Labor Inspector shall be four (4) years from the first day of May in the year of his appointment. Any vacancy in the office of Labor Inspector for any cause other than expiration of term shall be filled by the Department for the balance of the unexpired term.

(b) The Labor Inspector shall. be an assistant to the State Child Labor Inspector and shall be under the jurisdiction of the Department.

§ 111. Preparation of certificates; papers; and abstracts

The Department shall formulate and have printed certificates and papers required in the issuing of employment certificates and the abstracts of the law relating to the hours of child labor and conditions and hours of females in this State.

§ 112. Duties and powers of the Department

In addition to such other duties and powers which may be conferred upon them by law, the Department shall have the power, jurisdiction, duty and authority:

(a) To administer all labor laws in the State of Delaware;

(b) To direct to the attention of .the Attorney General of the State of Delaware, with a request for enforcement, violations of all labor laws in this State;

(c) To direct to the attention of the Attorney General of the State of Delaware with a request for the necessary enforcement, action, all violations under the terms of this Act;

(d) To make investigations and collect and compile statistical information with respect to and report upon the conditions of labor generally, and upon all matters relating to the enforcement and effect of the provisions of this Act;

(e) To propose to the Industrial Accident Board such rules, or changes in rules, as may be deemed advisable, either procedural or substantive;

(f) To do all in their power to promote the voluntary arbitration, mediation, and conciliation of disputes between employers and employees; provided, however, that neither the Department nor any of its representatives shall have the authority, under either this Section or Sections 117 to 121, inclusive, of this chapter, to make any public recommendation for the settlement of any specific labor dispute, or to make any public statement as to the merits of such dispute, prior to the final settlement thereof.

(g) To promote voluntary apprenticeship through cooperation with the United States Department of Labor.

(h) To make, amend, and repeal regulations necessary for the internal administration of the Department, and for the proper conduct of any necessary hearings before the Department or its authorized agents. The members of the Department shall not be bound by technical rules of evidence in the conduct of such hearings.

§ 113. Rules relating to accidents and industrial diseases

(a) The Department shall have the power to make, modify, and repeal rules for the prevention of accidents or of industrial or occupational diseases in every employment or place of employment or such rules for the construction, repair and maintenance of places of employment as shall render them safe. Such rules when made shall have the force and effect of law and shall be enforced in the same manner as the provisions of this Act.

() Before any rule is adopted, amended, or repealed, there shall be a public hearing thereon, notice of which shall be published at least once, not less than ten days prior thereto, in such newspaper or newspapers as the Department may prescribe. All rules and all amendments and repeals thereof shall, unless otherwise prescribed by the Board, take effect thirty days after the first publication thereof and shall be filed in the office of the Secretary of State.

(c) Every rule adopted and every amendment or repeal thereof shall be published in such manner as the Department may determine and a copy shall be delivered to every person making application therefor. The text of each rule, or amendment thereto shall be included in an appendix to the annual report of the Department next following the adoption or amendment of such rule.

(d) If there should be practical difficulties or unnecessary hardship in carrying out a rule of the Department made pursuant to this Section, the Department may, after public hearing, make variation from such requirement if the spirit of the rule and law shall be observed. Any person affected by such rule, or his agent, may petition the Department for such variation stating the grounds therefor. The Department shall fix a day for a hearing on such petition and give reasonable notice thereof to the petitioner. A properly indexed record of all variations made shall be kept in the office of the Department and shall be open to public inspection.

() Any person aggrieved by a rule made pursuant to this Section may petition the Department for a review of the reasonableness or validity of such rule. The Department may join in one proceeding all petitions alleging invalidity or unreasonableness of the same rule. The Department may order a hearing if necessary to determine the issues raised. Notice of the time and place of hearing shall be given to the petitioner and to such other persons as the Department may determine. The decision of the Department shall be final unless within thirty (30) days after the decision is filed with the Department, one of the parties commences an action as provided in Section 113 of this Chapter.

(a) In the formulation of rules and regulations under this Section, the Department shall seek the advice of the Industrial Accident Board.

§ 114. Inspection of records; duty to furnish information

(a) The members of the Department and their authorized representatives shall have the power and authority to enter at reasonable times, so as not to unduly hinder the conduct of the business, any place of employment for the purpose of inspecting records and collecting facts and statistics relating to the employment of workers and of making inspections for the proper enforcement of all labor laws of the State. No employer or owner shall refuse to admit the 'members of the Department, or their authorized representatives, to his place of employment, provided the admission requested is not at an unreasonable time.

(b) Any person who hinders or delays the members of the Department, or their authorized representatives in the performance of their duties, in the enforcement of this Act or any law which it is the power or duty of the Department to enforce; or who refuses to admit, at reasonable times, the members of the Department, or their authorized representatives to any place of employment; or who fails to give information lawfully required for the proper enforcement of any law, upon demand of the members of the Department, or their authorized representatives; and any employer who fails or refuses to make records relating to the employment of workers accessible, or who falsifies such records or who refuses to furnish a sworn statement thereof, upon demand of the Department or their authorized representatives, shall be deemed to have violated this Section.

§ 115. Power as to witnesses; seal; evidence; procedure

(a) The Department, and any officer of the Department designated by the Department, in the performance of any duty or the execution of any power prescribed by law, shall have the power to administer oaths, certify to official acts, take and cause to be taken depositions of witnesses, issue subpoenas, compel the attendance of witnesses, and the production of papers, books, accounts, payrolls, documents, records and testimony. In case of failure of any person to comply with any subpoena lawfully issued, or on the refusal of any witness to testify to any matter regarding which he may be lawfully interrogated, the Department shall be authorized to request the Attorney General of the State of Delaware to prosecute such person before the Superior Court of the State of Delaware. If such person shall be found guilty he shall be deemed to have been in contempt of that Court and shall be punished by that Court in the same fashion as that Court punishes any contempt thereof.

(b) The Department shall provide itself with a suitable seal which shall be judicially noticed.

§ 116. Court review

(a) Any person whose interest is affected thereby may commence an action in the Superior Court of the State of Delaware, in any of the three counties against the Department as defendant to determine the reasonableness and validity of any rule made pursuant to Section 113 of this Act, provided that no such action may be brought except as an appeal from the determination of the Department and within the time for such appeal, both as provided in Section 113, Subsection (e) of this Act. Such action and pleadings thereon shall be governed by the laws and rules of practice applicable to other civil actions.

§ 117. Declaration of policy

It is hereby declared as the public policy of this State that the best interests of the people of the State are served by the prevention or prompt settlement of labor disputes; that strikes and lock-outs and other forms of industrial strife, regardless where the merits of the controversy lie, are forces productive ultimately of economic waste; that the interests and rights of the consumers and the people of the State, while not direct parties thereto, should always be considered, respected and protected; and that the voluntary mediation of such disputes under the guidance and supervisions of a governmental agency will tend to promote permanent industrial peace and the health, welfare, comfort and safety of the people of the State. To carry out such policy, the necessity for the enactment of the provisions of this Act is hereby declared as a matter of legislative determination.

§ 118. Establishment of a State Mediation Service; director

There is hereby established in the Department of Labor and industrial Relations a State Mediation Service. The Chairman of the Department shall appoint from among the other members a Director of the Mediation Service, who shall hold office at the pleasure of the Chairman.

§ 119. Objective

It shall be the objective of the Service hereby established to take such steps as will most effectively and expeditiously carry out the policy declared in Section 117 of this Act, and the powers and duties conferred and imposed upon the Service by this Act or by law shall at all times be performed and discharged with the accomplishment of such objective as the ultimate goal.

§ 120. Powers and duties

(1) Upon his own motion, in an existing, imminent or threatened labor dispute, the Director may, and, upon the request of the parties or either party to the dispute, the Director must take such steps as he may deem expedient to effect a voluntary, amicable and expeditious adjustment and settlement of the differences and issues between employer and employees which have precipitated or culminated in or threaten to precipitate or culminate in such labor dispute. To this end, it shall be the duty of the Director: (a) to arrange for, hold, adjourn or reconvene a conference or conferences between the disputants or one or more of their representatives or any of them; (b) to invite the disputants or their representatives or any of them to attend such conference and submit, either orally or in writing, the grievances of and differences between the disputants; (c) to discuss such grievances and differences with the disputants and their representatives; and (d) to assist in negotiating and drafting agreements for the adjustment in settlement of such grievances and differences and for the termination or avoidance, as the case may be, of the existing or threatened labor dispute. In carrying out any of its work under this Act, the Director may designate one of the members of the Department or an employee of the Department to act in his behalf and may delegate to such designee one or more of his duties hereunder and, for such purpose, such designee shall have all of the powers hereby conferred upon the Director in connection with the discharge of the duty or duties so delegated.

(2) The Director may also appoint and designate other persons or groups of persons to act for and on his behalf and may delegate to such persons or groups of persons any and all of the powers conferred upon him by this Chapter so far as- it is reasonably necessary to effectuate the purposes of this Act. Such persons shall serve without compensation but shall be reimbursed for any necessary expenses.

§ 121. Arbitration

Whenever a controversy shall arise between any employer and his employees which is not settled either in conference between representatives of the parties or through mediation in the manner provided by this Act, such controversy may, by agreement of the parties, be submitted to arbitration, one person to be selected by the employer, one person to be selected by the employees, and a third selected by the representatives of the employer and employees, and in the event of any such appointment or selection not being made upon the request of the parties in the controversy, the Director may select the third person to arbitrate the matter submitted; provided, however, that the failure or refusal of either party to submit a controversy to arbitration shall not be construed as a violation of the policy or purpose of this Act, or of any provision thereof, nor shall failure or refusal to arbitrate constitute a basis for any action at law or suit in equity.

§ 122. Strikes

Nothing in this Act shall be construed to interfere with, impede or diminish in any way the right of employees to strike or engage in other lawful concerted activities.

§ 123. Rules

The Director of the Service shall have power to adopt, alter, amend, or repeal such rules in connection with the voluntary mediation of labor disputes as may be necessary for the proper administration and enforcement of the provisions of this Act.

§ 124. Construction

Nothing contained in this Act shall be construed as interfering with, impeding or diminishing in any way any right guaranteed by law or by the Constitution of the State or of the United States.

§ 125. Enforcement

It shall be the duty of the Attorney General of the State of Delaware upon request of the Department of Labor and Industrial Relations, or any of its authorized representatives, to prosecute any violations of the law or of any rule which it is made the duty of the Department to enforce; provided the Department may, upon its own motion, bring all necessary suits and institute such prosecutions as may be necessary suits and institute such prosecutions as may be necessary properly to enforce this Act, and shall not be required to give bond for costs or otherwise, in the event of appeal.

§ 126. Penalties

Any person who violates or fails or refuses to comply with any provision of any of the foregoing Sections of this Act, or any lawful order of the Department or any judgment or decree made by any Court in connection with the provisions of this Act for which no penalty has been otherwise provided, shall be guilty of a misdemeanor and upon conviction thereof in the Superior Court shall be fined not less than Ten Dollars ($10.00), nor more than One Hundred Dollars ($100.00), or shall be imprisoned for a term not exceeding six months, or both, for each such offense; and each day such violation, omission, failure, or refusal continues after notification or entry of the decree of a Court shall be deemed a separate offense. Any person who shall knowingly testify falsely, under oath, or shall knowingly make, give, or produce any false statements or false evidence, under oath to the Department or their authorized representatives, shall be deemed guilty of perjury.

§ 127. Annual report; recommendations as to legislation needed

The Department shall annually, on or before the First day of February, file with the Governor a report covering the activities of the Department during the preceding calendar year, accompanied by recommendations with reference to such changes in the law applying to and affecting industrial and labor conditions as the Department may deem advisable.

§ 128. State and Federal cooperation

The Department may and it is hereby authorized to assist and cooperate with the Wage-Hour and Public Contracts Divisions and the United States Department of Labor, in the enforcement within this State of the Fair Labor Standards Act of 1938, approved June 25, 1938, and subject to the regulations of the Administrator of such Divisions, as the case may be, and the laws of the State applicable to the receipt and expenditures of moneys, may be paid or reimbursed by said Divisions, for the reasonable cost of such assistance and cooperation.

§ 129. Severability

If any provisions of this Act, or the application of such provisions to any person or circumstance, shall be held invalid, the remainder of this Act, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

Section 2. This Act shall become effective ninety (90) days after its enactment.

Approved December 28, 1961.