CHAPTER 571

AN ACT TO AMEND TITLE 29, DELAWARE CODE, BY CREATING A NEW CHAPTER TO BE DESIGNATED AS CHAPTER 85 RELATING TO THE ESTABLISHMENT OF A DEPARTMENT OF LABOR, DEFINING ITS ORGANIZATION, POWERS, DUTIES, AND FUNCTIONS AND PROVIDING FOR THE TRANSFER OF MATERIALS AND EQUIPMENT TO SAID DEPARTMENT FROM VARIOUS STATE AGENCIES AND PROVIDING A SUPPLEMENTARY APPROPRIATION TO THE GOVERNOR TO IMPLEMENT THE PROVISIONS OF THIS ACT.

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

Section 1. Title 29, Delaware Code, is hereby amended by adding a new Chapter thereto to be designated as Chapter 85 to read as follows:

CHAPTER 85. DEPARTMENT OF LABOR

§ 8501. Establishment of Department of Labor

(a) A Department of Labor is hereby established. The Department of Labor shall have, in addition to the other powers, duties and functions vested in the Department by the provisions of this Chapter, the following powers, duties and functions:

(1) The Department of Labor shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in:

(i) The Department of Labor and Industrial Relations pursuant to the provisions of Title 19, Delaware Code, Chapters 1 and 13 except as provided in §8513 of this Chapter;

(ii) The Delaware State Development Department pursuant to the provisions of Title 29, Delaware Code, §4103 (c), only;

() The Employment Security Commission of Delaware pursuant to the provisions of Title 19, Delaware Code, Chapters 31 and 33, not otherwise specifically assigned to an office, division or board in the Department.

§ 8502. Secretary; Division Directors; Acting Secretary; Appointment

(a) The administrator and head of the Department shall be the Secretary of the Department of Labor, who shall be a person qualified by training and experience to perform the duties of his office, and preference shall be given to a resident of this State provided that he is acceptable and equally qualified. The Secretary shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor. He shall be paid an annual salary not in excess of $28,000.

(b) In the event the position of Secretary is vacant, the Governor, by appointment, shall have the power to fill the position or positions of division director as are vacant. Directors so appointed shall serve at the pleasure of the Governor and upon the position of Secretary being filled such directors may be removed by the Secretary with the written approval of the Governor.

(c) In the event of death, resignation, temporary incapacity or removal of the Secretary and prior to the appointment of his successor, the Governor may appoint the director of any division of the Department to serve as Acting Secretary. The Secretary may, during the absence from the State, appoint the director of any division of the Department to serve as Acting Secretary during such absence. In either case the Acting Secretary shall have all the powers and shall perform all the duties and functions of the Secretary during his absence or incapacity or until his successor is duly qualified and appointed.

§ 8503. Powers, duties and functions of the Secretary

The Secretary shall have the following powers, duties and functions:

(a) To supervise, direct and account for the administration and operation of the Department, its divisions, subdivisions, offices, functions and employees;

(b) To appoint, and fix the salary of, with the written approval of the Governor, the following division directors and office heads, who may be removed from office by the Secretary with the written approval of the Governor, and who shall have such powers, duties and functions in the administration and operation of the Department as may be assigned by the Secretary:

(1) An administrator and head of the Office of Administration, who shall be known as the Chief of Administration, and who shall be qualified by training and experience to perform the duties of his office.

(2) An administrator and head of the Office of Planning, Research and Evaluation, who shall be known as the Chief of Planning, Research and Evaluation, and who shall be qualified by training and experience to perform the duties of his office.

(3) A Director of the Division of Employment Services, who shall be known as the Director of Employment Services, and who shall be qualified by training and experience to perform the duties of his office.

(4) A Director of the Division of Unemployment Insurance, who shall be known as the Director of Unemployment Insurance, and who shall be qualified by training and experience to perform the duties of his office.

(5) A Director of the Division of Industrial Affairs, who shall be known as the Director of Industrial Affairs, and who shall be qualified by training and experience to perform the duties of his office.

(6) A Director of the Division of Vocational Rehabilitation, who shall be known as the Director of Vocational Rehabilitation, and who shall be qualified by training and experience to perform the duties of his office.

(c) To appoint such additional personnel as may be necessary for the administration and operation of the Department within such limitations as may be imposed by law;

(d) To establish, consolidate or abolish such divisions, subdivisions and offices within the Department or transfer or combine the powers, duties and functions of the divisions, subdivisions and offices within the Department as the Secretary, with the written approval of the Governor, may deem necessary, provided that all powers, duties and functions required by law shall be provided for and maintained;

(e) To make and enter into any and all contracts, agreements or stipulations, and to retain, employ and contract for the services of private and public consultants, research and technical personnel and to procure by contract, consulting, research, technical and other services and facilities, whenever the same shall be deemed by the Secretary necessary or desirable in the performance of the functions of the Department and whenever funds shall be available for such purpose. All necessary legal services shall be provided pursuant to Title 29, Delaware Code, Chapter 25;

(f) To delegate any of his powers, duties or functions to a director of a division except his power to remove employees of the Department or to fix their compensation;

(g) To establish and to promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by him and which are not inconsistent with the laws of this State;

(h) To maintain such facilities throughout the State as may be required for the effective and efficient operation of the Department;

() To adopt an official seal or seals for the Department.

§ 8504. Office of Administration

(a) The Office of administration is hereby established having powers, duties and functions as follows:

(1) The Office of Administration shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions respecting administrative services heretofore performed by the Employment Security Commission of Delaware in the exercise of its powers and duties pursuant to the provisions of Title 19, Delaware Code, Chapters 31 and 33.

(2) In addition to the foregoing, the Office of Administration shall administer and coordinate the record keeping, transportation, fiscal affairs, data processing, accounting, statistics, personnel and such other general services for the Department as the Secretary may deem necessary for the proper, efficient and economical operation of the Department and shall coordinate such general services and business administration with other departments, agencies and offices of the Government of this State.

§ 8505. Office of Planning, Research and Evaluation

(a) The Office of Planning, Research and Evaluation is hereby established having powers, duties and functions as follows:

(1) The Office of Planning, Research and Evaluation shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions respecting statistical research and analysis regarding employment and unemployment heretofore performed by the Employment Security Commission of Delaware in the exercise of its powers and duties pursuant to the provisions of Title 19, Delaware Code, Chapters 31 and 33.

(2) In addition to the foregoing, the Office of Planning, Research and Evaluation shall provide for and carry out the future comprehensive planning of the programs, policies and operation of the Department and the evaluation, necessary research, data collection and analysis of the programs, policies and operations of the Department.

§ 8506. Division of Employment Services

(a) The Division of Employment Services is hereby established having powers, duties and functions as follows:

(1) The Division of Employment Services shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions respecting employment services heretofore performed by the Employment Security Commission of Delaware in the exercise of its powers and duties pursuant to the provisions of Title 19, Delaware Code, Chapters 31 (except for §3155 which shall be vested in the Department of Finance and the Department of Administrative Services as provided by law) and 33.

§ 8507. Council on Employment Services

(a) There is hereby established the Council on Employment Services.

The Council on Employment Services shall serve in an advisory capacity to the Director of Employment Services and in cooperation with the United States Department of Labor, shall consider matters relating to the formulation of policies and the development and maintenance of impartial, non-partisan standards in the administration of and the selection of the personnel of employment services. The Council shall also consider matters relating to the promotion of public understanding of the purposes, policies, and practices of employment services and such other matters as may be referred to it by the Governor, Secretary of the Department or Director of Employment Services. The Council may study, research, plan and advise the Director, the Secretary and the Governor on matters it deems appropriate to enable the Division to function in the best possible manner.

(c) The Council on Employment Services, upon the effective date of this Chapter, shall be composed of the members of the Department of Labor and Industrial Relations whose terms, as of the effective date of this Chapter, have not expired and the Chairman of the Council on Apprenticeship and Training. The members of the Department of Labor and Industrial Relations shall serve as members of the Council for the period of their unexpired term. The Council shall be composed of seven (7) members. The terms of the newly appointed members shall be staggered. The first two (2) appointees shall serve for a term of one (1) year, the next two (2) appointees shall serve for a term of two (2) years and the next two (2) appointees shall serve for a term of three (3) years. Thereafter, all new appointees shall serve for a term of three (3) years.

(d) At least three (3), but no more than four (4) of the newly appointed members of the Council shall be affiliated with one of the major political parties and at least two (2), but no more than three (3), of the newly appointed members shall be affiliated with the other major political party; provided, however, there shall be no more than a bare majority representation of one major political party over the other major political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Council.

(e) Members of the Council shall serve without compensation except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council.

(f) A chairman of the Council may be chosen by the members of the Council from among its members and shall serve in that capacity for a term of one (1) year and shall be eligible for re-election.

(g) Any appointment, pursuant to the provisions hereof, to replace a member whose position becomes vacant prior to the expiration of his term, shall be filled only for the remainder of that term.

§ 8508. Division of Unemployment Insurance

(a) The Division of Unemployment Insurance is hereby established having powers, duties and functions as follows:

(1) The Division of Unemployment Insurance shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions respecting unemployment insurance services heretofore performed by the Employment Security Commission of Delaware in the exercise of its powers and duties pursuant to the provisions of Title 19, Delaware Code, Chapters 31, and 33, except as set forth in §8509 below.

(2) The administrative, ministerial, fiscal and clerical functions heretofore performed by the Employment Security Commission of Delaware in the exercise of its powers and duties as a review board, pursuant to the provisions of Title 19, Delaware Code, Chapters 31 and 33, shall be performed by the Division of Unemployment Insurance.

§ 8509. Unemployment Insurance Appeal Board

(a) The Employment Security Commission of Delaware, created by Title 19, Delaware Code, Chapter 31, hereby renamed the Unemployment Insurance Appeal Board, is continued as a review board.

(b) Except as otherwise provided in § 8508 (a) (2) above, the Unemployment Insurance Appeal Board is vested with the membership, remuneration, organization, powers, duties and functions heretofore vested in the Employment Security Commission in its capacity as a review board, with the power to hear appeals from the decisions of appeal tribunals as the same heretofore existed respecting decisions of appeal tribunals pursuant to the provisions of Title 19, Delaware Code, Chapters 31 and 33. The right of appeal from determinations of the Employment Security Commission heretofore existing pursuant to law is hereby continued respecting appeals from determinations of the Unemployment Insurance Appeal Board.

§ 8510. Division of Industrial Affairs

(a) The Division of Industrial Affairs is hereby established having powers, duties and functions as follows:

(1) The Division of Industrial Affairs shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in:

(i) The Department of Labor and Industrial Relations, the Labor Commission, the State Child Labor Inspector, the Labor Inspector and the State Mediation Service pursuant to the provisions of Title 19, Delaware Code, Chapter 1, except § 104 thereof, and Chapter 5;

() The Department of Labor and Industrial Relations and the State Apprenticeship and Training Council pursuant to the provisions of Title 19, Delaware Code, Chapter 2;

(i) The Labor Commission of Delaware and the Division Against Discrimination pursuant to the provisions of Title 19, Delaware Code, Chapter 7;

(ii) The Department of Labor and Industrial Relations pursuant to the provisions of Title 19, Delaware Code, Chapters 8, 9, and 11.

(2) The administrative, ministerial, fiscal and clerical functions of the Industrial Accident Board, set forth in Title 19, Delaware Code, Chapter 21, shall be performed by the Division of Industrial Affairs.

§ 8511. Industrial Accident Board

(a) The Industrial Accident Board, created by the provisions of Title 19, Delaware Code, Chapter 21, is hereby continued.

(b) Except as otherwise provided in § 8510 (a) (2) above, the Industrial Accident Board is vested with the membership, remuneration, organization, meetings, powers, duties and functions heretofore vested in the Industrial Accident Board by law including jurisdiction of all cases arising under Title 19, Delaware Code, Chapters 21 and 23. The right of appeal from determinations of the Industrial Accident Board heretofore existing pursuant to law is hereby continued.

§ 8512. Council on Apprenticeship and Training

(a) There is hereby established the Council on Apprenticeship and Training.

(b) The Council on Apprenticeship and Training shall serve in an advisory capacity to the Secretary of Labor and shall consider matters relating to apprenticeship and occupational training and such other matters as may be referred to it by the Governor, Secretary of the Department or Director of Industrial Affairs. The Council may study, research, plan and advise the Director, the Secretary and the Governor on matters it deems appropriate to enable the Division to function in the best possible manner.

(c) The Council on Apprenticeship and Training, upon the effective date of this Chapter, shall be composed of the members of the State Council on Apprenticeship and Training whose terms, as of the effective date of this Chapter, have not expired, with the exception of the Chairman of the Department of Labor and Industrial Relations whose term shall end as of the effective date of this Chapter. Each member shall serve on the Council on Apprenticeship and Training for the period of his unexpired term, unless he vacates his position by resignation, death or incapacity. The Council shall be composed of seven (7) members, six (6) of whom shall be appointed by the Governor. Three of the appointed members shall be representative of employee organizations and three of the appointed members shall be representative of employers. The Director of the Department for Vocational Education shall be an ex-officio voting member of the Council. The State Supervisor of the United States Department of Labor, Bureau of Apprenticeship and training, shall be a consultant to the Council. The terms of the newly appointed members shall be staggered. The first two (2) appointees shall serve for a term of one (1) year, the next two (2) appointees shall serve for a term of two (2) years and the next two (2) appointees shall serve for a term of three (3) years. Thereafter, all new appointees shall serve for a term of three (3) years.

(d) At least three (3), but no more than four (4) of the newly appointed members of the Council shall be affiliated with one of the major political parties and at least two (2), but no more than three (3), of the newly appointed members shall be affiliated with the other major political party; provided, however, there shall be no more than a bare majority representation of one major political party over the other major political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Council.

(e) Members of the Council shall serve without compensation except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council.

(f) A chairman of the Council shall be chosen by the members of the Council from among its members and shall serve in that capacity for a term of one (1) year and shall be eligible for re-election.

(g) Any appointment, pursuant to the provisions hereof, to replace a member whose position becomes vacant prior to the expiration of his term, shall be filled only for the remainder of that term.

§ 8513. Division of Vocational Rehabilitation

(a) The Division of Vocational Rehabilitation is hereby established having powers, duties and functions as follows:

(1) The Division of Vocational Rehabilitation shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions respecting vocational rehabilitation heretofore vested in the State Board for Vocational Education-Rehabilitation Division pursuant to the provisions of Title 14, Delaware Code, Chapter 33.

(b) In implementing the transfer of personnel of the Division of Vocational Rehabilitation into the classified service under Title 29, Delaware Code, Chapter 59, the State Personnel Commission is directed to assign all positions of professional categories so that the salary schedules for the fiscal year ending June 30, 1971, set forth in Senate Bill No. 418 of the 125th General Assembly, as amended, shall, insofar as practicable, be incorporated into the classifications and pay plans of the Commission. In no event shall the minimum, intermediate, or maximum amounts for any position be less than those which would otherwise have been available to such personnel. The State Personnel Commission is further directed to assign all positions of non-professional personnel to appropriate positions and pay grades within the classifications and pay plans of the Commission; provided, however, that if the present salary of any such employee is not at an even step of a pay grade he shall be paid at the next higher even step and, further provided, that in no event shall the salary paid any such employee be lower than that for which he would otherwise be eligible as of July 1, 1970.

§ 8514. Governor's Council on Labor

(a) There is hereby established the Governor's Council on Labor.

(b) The Governor's Council on Labor, upon the effective date of this Chapter, shall be composed of the members of the Department of Labor and Industrial Relations whose terms, as of the effective date of this Chapter, have not expired and the Chairman of the Council on Apprenticeship and Training. The members of the Department of Labor and Industrial Relations shall serve as members of the Council for the period of their unexpired term. The Council shall be composed of seven (7) members. The terms of the newly appointed members shall be staggered. The first two (2) appointees shall serve for a term of one (1) year, the next two (2) appointees shall serve for a term of two (2) years and the next two (2) appointees shall serve for a term of three (3) years. Thereafter, all new appointees shall serve for a term of three (3) years.

() The term of the ex-officio member of the Council shall coincide with his term as Chairman of the Council on Apprenticeship and Training.

() The Governor's Council on Labor shall advise, recommend and refer to the Secretary of the Department matters which, in its opinion are of Departmental concern, and shall consider such other matters as may be referred to it by the Secretary of the Department or the Governor. The Council may also study, research, plan and advise the Secretary and the Governor on matters it deems appropriate to enable the Department to function in the best possible manner.

(e) In addition to the foregoing, the Governor's Council on Labor shall, after hearing upon reasonable notice, recommend to the Secretary the unit appropriate for the purpose of collective bargaining, as provided in Title 19, Delaware Code, Chapter 13. The Secretary, in each case, shall determine the unit appropriate for the purpose of collective bargaining, as provided in §8501 of this Chapter.

(1) If the Council, for any reason, shall fail to hold a hearing or shall hold a hearing but shall fail to make a recommendation to the Secretary within a reasonable period of time following notification by the Secretary, the Secretary may, with the approval of the Governor, upon twenty (20) days' prior written notice to the Chairman of the Council, determine the appropriate collective bargaining unit, notwithstanding the failure of the Council to hold a hearing or make its recommendations, or both.

(f) At least three (3), but no more than four (4) of the members of the Council shall be affiliated with one of the major political parties; at least two (2), but no more than three (3) of the members shall be affiliated with the other major political party; provided, however, there shall be no more than a bare majority representation of one major political party over the other major political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Council.

§ 8515. Books, records; access; annual report

(a) The Governor's Council on Labor shall have access to all books, records, reports, and other documents relating to the Department of Labor unless otherwise prohibited by law.

(b) The various councils of the division of the Department of Labor shall have access to all books, records, reports, and other documents relating to their respective divisions unless otherwise prohibited by law.

(c) The Chairman of the Governor's Council on Labor and the chairmen of the councils of the divisions of the Department shall make an annual report of the activities of each of said councils to the Secretary of the Department, the Governor and the General Assembly and render such other reports as the Secretary, the Governor or the General Assembly may from time to time request or as may be required by law.

§ 8516. Exemptions

(a) The following positions set forth in this Act shall be exempt from the provisions of Title 29, Delaware Code, Chapter 59;

(1) Secretary of Labor;

(2) Chief of Administration;

(3) Chief of Planning, Research and Evaluation;

(4) Director of Employment Services;

(5) Director of Unemployment Insurance;

(6) Director of Industrial Affairs;

(7) Director of Vocational Rehabilitation.

§ 8517. Merit System Coverage

Notwithstanding any other provisions of this Chapter, the Secretary of Labor, with the approval of the Governor, is authorized and directed to take such action with respect to merit system coverage of personnel as may be necessary to qualify, or continue the eligibility of, this State for grants-in-aid under any Federal law or program.

§ 8518. Functions prior to effective date of this Chapter

The Department, through appropriate division, subdivisions, and offices, shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions vested by law in the Department of Labor and Industrial Relations, Employment Security Commission of Delaware, State Mediation Services, State Apprenticeship and Training Council, Industrial Accident Board and State Board for Vocational Education-Rehabilitation Division immediately prior to the effective date of this Chapter and which are not otherwise hereinabove specifically transferred to the Department by the provisions of this Chapter, excepting only those powers, duties and functions hereinabove expressly vested in or retained by any such person, department, board, commission or agency.

§ 8519. Appeals

Any and all rights of appeal now existing by law with respect to any act or acts constituting the exercise of any function or functions hereby transferred to the Department or to any division or subdivision thereof shall continue to exist with respect to such act or acts as hereafter performed by the Department or by the division, or office to which such function is hereby transferred, and each appeal shall be perfected in the manner heretofore provided by law.

§ 8520. Transfers and continuity

(a) All books, records, papers, maps, charts, plans and other material including, but not limited to, any equipment in the possession of any agency of the State and used in connection with a function hereby transferred to the Department shall on the effective date of this Chapter be delivered into the custody of the Department. All investigations, petitions, hearings, and legal proceedings pending before or instituted by any agency from which functions are hereby transferred and not concluded prior to the effective date of this Chapter shall continue unabated and remain in full force and effect, notwithstanding the passage of this Chapter and where necessary, may be completed before, by, or in the name of the Department. All orders, rules and regulations made by any agency from which functions are hereby transferred and governing such functions and which are in effect upon the effective date of this Chapter shall remain in full force and effect until revoked or modified in accordance with law by the Department. All contracts and obligations of any agency made or undertaken in the performance of a function hereby transferred to the Department and being in force on the effective date of this Chapter, shall, notwithstanding the provisions of this Chapter, remain in full force and effect and be performed by the Department.

(b) All employees of any commission, board, department, council or agency, to the extent that the same are consistent with this Chapter and in connection with a function hereby transferred to the Department, shall continue and be deemed to be the employees of the Department on the effective date of this Chapter and, where applicable, with all the benefits accrued as merit employees as of the effective date of this Chapter.

(c) All definitions and reference to any commission, board, department, council or agency which appear in any other Act or law shall, to the extent that the same are consistent with this Chapter and in connection with a function hereby transferred to the Department, be construed as referring and relating to the Department of Labor as created and established herein.

(d) All definitions and references to any director, commissioner, executive secretary, commission, board or council member or other similar person which appear in any other Act or law, shall, to the extent that same are consistent with this Chapter, and in connection with functions hereby transferred to the Department, be construed as referring or relating to such person or persons and their powers, duties and functions as established and created herein.

§ 8521. Annual Report

The Secretary of the Department shall make an annual report to the Governor and the General Assembly of the Department's operations, and render such other reports as the Governor or General Assembly may from time to time request or as may be required by law.

§ 8522. Misnomer of Department in Donation

Any misnomer shall not defeat or annul any gift, grant, devise or bequest to the Department if it sufficiently appears by the will, conveyance or other writing, that the party making the same intended to pass and convey thereby to the Department or to any commission, board, department, authority, council or agency, to which, by the provisions of the Act, the powers, duties and functions have been transferred to the Department, the estate or interest therein expressed or described.

§ 8523. Budgeting and financing

The Secretary, in cooperation with the division directors, shall prepare a proposed budget for the operation of the Department to be submitted for the consideration of the Governor and the General Assembly. The Department shall be operated within the limitation of the Annual Appropriation and any other funds appropriated by the General Assembly.

Special funds may be used in accordance with approved programs, grants and appropriations.

§ 8524. Severability

If any provision of this Chapter, or of any rule, regulation or order thereunder of the application of such provision to any person or circumstances, shall be held invalid, the remainder of this Chapter and the application of such provisions of this Chapter or of such rule, regulation or order to persons or circumstances other than those to which it is held invalid, shall not be affected hereby.

Section 2. The provisions of Section 1 of this Act shall become effective on the date which the Governor designates in an executive order stating that he has found it administratively feasible to implement this Act or on January 1, 1971, whichever first occurs.

Section 3. The sum of fifty thousand dollars ($50,000) is hereby appropriated to the Governor for the fiscal year ending June 30, 1971, for the purpose of implementing the provisions of this Act. This appropriation shall be considered as a supplementary appropriation and shall be paid out of funds not otherwise appropriated and any portion thereof which is unexpended or unencumbered as of June 30, 1971, shall revert to the General Fund.

Section 4. Any sums appropriated to any board, commission, department, council or agency affected by this Act and which, upon the effective date of this Act, are unencumbered or unexpended shall be and are hereby appropriated and transferred to the Department of Labor.

Approved June 22, 1970.