HOUSE SUBSTITUTE NO. 1
HOUSE BILL NO. 557
AS AMENDED BY HOUSE AMENDMENT NOS. 3, 5, 6, 8, 10, 11, 13, 14,
15, 16, 17, 18, 19 AND 22 AND SENATE AMENDMENT NOS. 1, 10, 12 AND 14
AN ACT TO AMEND CHAPTER 40, TITLE 14 OF THE DELAWARE CODE RELATING TO NEGOTIATIONS AND EMPLOYEE RELATIONS OF PROFESSIONAL EMPLOYEES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 40, Title 14 of the Delaware Code, by striking said Chapter in its entirety, and substituting in Lieu thereof a new Chapter 40, Title 14, which shall be known as the "Public School Employement Relations Act" and shall read as follows:
"CHAPTER 40. PUBLIC SCHOOL EMPLOYMENT RELATIONS ACT
§4001. Statement of Policy
It is the declared policy of the State of Delaware and the purpose of this Act to promote harmonious and cooperative relationships between reoganized public school districts and their employees and to protect the public by assuring the orderly and uninterrupted operations and functions of the public school system. These policies are best effectuated by (a) granting to school employees the right of organization and representation, (b) obligating boards of education and school employee organizations which have been certified as representing their school employees to enter into collective bargaining negotiations with the willingness to resolve disputes relatng to terms and conditions of employment and to reduce to writing any agreements reached through such negotiations, and (c) establishing a public employment relations board to assist in resolving disputes between school employees and boards of education and to administer the provisions of this Act.
(1) 'Appropriate bargaining unit' or 'bargaining unit' means a group of school employees designated by the Public Employment Relations Board as appropriate for representation by an employee organization for purposes of collective bargaining.
(2) 'Arbitration' means the procedure whereby the parties involved in a labor dispute over the interpretation or application of an existing collective bargaining agreement submit their differences to a third party for a final and binding decision.
(3) 'Board' means the Public Employment Relations Board established by §4006 of this Act.
(4) 'Certification' means official recognition by the Board, following a secret-ballot election, that an employee organization is the exclusive representative for all employees in an appropriate bargaining unit.
(5) 'Collective bargaining' means the performance of the mutual obligation of a school employer through its designated representatives and the exclusive bargaining representative to confer and negotiate in good faith with respect to terms and conditions of employment, and to execute a written contract incorporating any agreements reached. However, this obligation does not compel either party to agree to a proposal or require the making of a concession.
(6) 'Decertification' means the withdrawal by the Board of an employee organization's official designation as exclusive representative following a decertification election which shows that the exclusive representative no longer has the support of a majority of the members in an appropriate bargaining unit.
(7) 'Employee organization' means any organization which admits to membership employees of a public school employer and which has as a purpose the representation of such employees in collective bargaining, and includes any person acting as an officer, representative, or agent of said organization.
(8) 'Exclusive bargaining representative' or 'exclusive representative' means the employee organization which as a result of certification by the Board has the right and responsibility to be the collective bargaining agent of all employees in that bargaining unit.
(9) 'Fact-finding' means the procedure by which a qualified impartial third party shall make written findings of fact and recommendations for resolution of an impasse.
00) 'Impasse' means the failure of a public school employer and the exclusive bargaining representative to reach agreement in the course of collective bargaining.
(11) 'Mediation' means an effort by an impartial third party confidentially to assist in reconciling an impasse between the public school employer and the exclusive bargaining representative regarding terms and conditions of employment.
(12) 'Public school employee' or 'employee' means any certificated professional employee of a public school employer except public school administrators.
(13) 'Public school employer' or 'employer' means any board of education, school district, reorganized school district, special school district, and any person acting as an agent thereof.
(14) 'Public school administrator' means and includes all public school employees performing primarily administrative functions and employed under an administrative contract by a public school district.
(15) 'Strike' means a public school employee's failure, in concerted action with others, to report for duty, or his or her willful absence from his or her position, or his or her stoppage or deliberate slowing down of work, or his or her withholding in whole or in part from the full, faithful and proper performance of his or her duties of employment, or his or her involvement in a concerted interruption of operations of a public school employer for the purpose of inducing, influencing, or coercing a change in the conditions, compensation rights, privileges, or obligations of public school employment; however, nothing shall limit or impair the right of any public school employee to lawfully express or communicate a complaint or opinion on any matter related to terms and conditions of employment.
(16) 'Terms and conditions of employment' means matters concerning or related to wages, salaries, hours, grievance procedures, and working conditions, provided, however, that such term shall not include those matters determined by this Act or any other law of the State to be within the exclusive prerogative of the public school employer.
§4003. School Employee Rights
School employees shall have the right to:
(1) Organize, form, join, or assist any employee organization, provided that membership In, or an obligation to pay any dues, fees, assessments, or other charges to an employee organization shall not be required as a condition of employment.
(2) Negotiate collectively or grieve through representatives of their own choosing.
(3) Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection insofar as any such activity is not prohibited by this Act or any other law of the State.
(4) 130 represented by their exclusive representative, if any, without discrimination.
(5) §4004. Employee Organization as Exclusive Representative
(1) The employee organization designated or selected for the purpose of collective bargaining by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of all the employees in the unit for such purpose and shall have the duty to represent all unit employees without discrimination. Where an exclusive representative has been certified, a public school employer shall not bargain in regard to matters covered by this Act with any employee, group of employees, or other employee organization.
(2) Nothing contained in this section shall prevent employees individually or as a group, from presenting complaints to a public school employer and from having such complaints adjusted without the intervention of the exclusive representative for the bargaining unit of which they are a part, as long as the representative is given an opportunity to be present at such adjustment and to make its view known, and as long as the adjustment is not inconsistent with the terms of an agreement between the public school employer and the exclusive representative which is then in effect. The right of the exclusive representative shall not apply where the complaint involves matters of personal, embarassing and confidential nature, and the complainant specifically requests, in writing that the exclusive representative not be present.
employees, within the bargaining unit, who authorize, in writing, the deduction of said dues. Such authorization is revocable at the employee's written request. Said deductions shall commence upon the exclusive representative's written request to the employer. Such right to deduction shall be in force for so long as the employee organization remains the exclusive bargaining representative for the employees in the unit. The public school employer is expressly prohibited from any involvement in the collection of fines, penalties, or special assessments levied on members by the exclusive representative.
§4005. Public School Employer Rights
A public school employer is not required to engage in collective bargaining on matters of inherent managerial policy, which include but are not limited to, such areas of discretion or policy as the functions and programs of the public school employer, its standards of services, overall budget, utilization of technology, the organizational structure, curriculum, discipline and the selection and direction of personnel.
§4006. Public Employment Relations Board
(1) There is hereby established a board to be known as the 'Public Employment Relations Board', the purpose of which shall be to administer the provisions of this Act under rules and regulations which it shall adopt and publish. The Board shall be organizationally located within the Department of Administrative Services; however, in the performance of its powers and duties under this Act, the Board shall not be subject to control, supervision, or direction by the Department of Administrative Services or by an officer thereof.
(2) The Hoard shall consist of three (3) members to be appointed by the Governor subject to confirmation by the Senate, from persons representative of the public. One member shall be designated by the Governor as Chairman, and he or she shall serve a fixed term. Not more than two (2) members of the Board shall be members of the same political party. Each member shall be appointed for a term of six (6) years, except that the initial appointments shall be: one member shall be appointed for a term that shall expire two (2) years following the effective date of this Act, one member for a term that shall expire four (4) years following the effective date of this Act, and the Chairman for a term that shall expire six (6) years following the effective date of this Act. A member appointed to fill a vacancy shall be appointed for the unexpired term of the member whom he or she is to succeed. Any member of the Board may be removed by the Governor for misfeasance, malfeasance, or nonfeasance in office, after a hearing before an impartial designee of the Governor. A vacancy in the Board shall not impair the right of the remaining members to exercise all the powers of the Board. Two (2) members of the Board shall, at all times, constitute a quorum, but official orders shall require concurrence of a majority of the Board. Board members shall be eligible for reappointment.
(3) Members of the Board shall be knowledgeable in the area of labor relations and shall possess the reputation for integrity and impartiality necessary to protect the public interest.
(4) Members shall hold no other public office or employment by the State or other public agency or public employer, or be an officer or employee of any public employee labor organization or any of its affiliates, or represent any public employer or public employee organization or its affiliates; however, this restriction shall not be interpreted to exclude persons who are knowledgeable in employment relations, public administration, or labor law so long as they are not actively engaged, other than age member, in any management or employee organization.
(5) The Chairman of the Board shall receive a per diem stipend of $110, and each of the other members shall receive a per diem stipend of $100. Each member of the Board shall be reimbursed for actual and necessary travel and subsistence expenses when performing Board business away from his or her place of residence.
(6) The Board shall appoint an executive director who shall be the chief administrative officer The executive director shall be a person familiar with employer-employee relations. In addition to the performance of administrative duties, the Board may delegate to the executive director authority with respect to, but not limited to, bargaining unit determination and representation proceedings, unfair labor practice proceedings, mediation of labor disputes, fact-finding and arbitration proceedings. Such delegation shall not limit a party's right to appeal to the Board. The executive director, with such assistance as may be provided by the Attorney General and such additional legal assistance which, from time to time, may be necessary, shall have authority on behalf of the Board, when necessary to carry out or enforce any action or decision of the Board, to petition any court of competent jurisdiction for any order requiring compliance with the action or decision.
(7) The Board may employ such other persons as it may, from time to time, find necessary for the proper performance of its functions within the amounts made available through appropriations therefor, and may prescribe their duties and fix their compensation.
(8) To accomplish the objectives and to carry out the duties prescribed in this Act, the Board shall have the following powers:
(a) To issue, amend, and rescind such rules and regulations as it deems necessary to carry out the provisions of this Act and to prevent any person from engaging in conduct in violation of this Act. Such rules and regulations shall be adopted in accordance with the provisions of 29 Del. C. 64.
(a) To hold hearings, subpoena witnesses, administer oaths and take the testimony or deposition of any person under oath, and in connection therwith, to Issue subpoensas requiring the production and examination of any books or papers, including those of the State and/or a board of education relating to any matter pending before it, and to take such other action, Including the granting of interim or other relief as may be necessary to discharge its powers and duties. In no case however, should it be empowered, either directly or through a fact-finder, to mandate to the public school employer action which involves an economic cost to the public school employer.
(b) To conduct in any part of this State any proceeding, hearing, investigation, inquiry, or election necessary to the performance of Its functions. In carrying out the purposes of this Act, the Board may designate one of its members or an agent or agents as hearing examiner(s).
(c) To provide by rule a procedure for the filing and prompt disposition of petitions for a declaratory statement as to the applicability of any provision of this Act or any rule or order of the Board. Such procedures shall provide for, but not be limited to, an expeditious determination of questions relating to potential unfair labor practices and to questions relating to whether a matter In dispute is within the scope of collective bargaining.
(d) To request from any public agency such assistance, services, and data as will enable the Board to properly carry out its functions and powers.
(e) At the end of each year, to make a report in writing to the Governor and the General Assembly and detail the work it has done in hearing and deciding cases.
(f) To adopt an official seal and prescribe the purposes for which it shall be used.
§4007. Unfair Labor Practices
(1) It is an unfair labor practice for a public school employer or its designated representative to do any of the following:
(a) Interfere with, restrain, or coerce any employee in or because of the exercise of any right guaranteed under this Act.
(b) Dominate interfere with, or assist in the formation, existence or administration of any labor organization.
(c) Encourage or discourage membership in any employee organization by discrimination in regard to hiring, tenure, or other terms and conditions of employment.
(d) Discharge or otherwise discriminate against an employee because the employer has signed or filed an affidavit petition or complaint, or has given information or testimony under this Act.
(e) Refuse to bargain collectively in good faith with an employee representative which is the exclusive representative of employees in an appropriate unit.
(f) Refuse or fail to comply with any provision of this Act or with rules and regulations established by the Board pursuant to its responsibility to regulate the conduct of collective bargaining under this Act.
(g) Refuse to reduce an agreement, reached as a result of collective bargaining, to writing and sign the resulting contract.
(h) Refuse to disclose any public record as defined by 29 Del. C. 100.
(2) It is unfair labor practice for a public school employee or for an employee organization or its designated representative to do any of the following:
(a) Interfere with, restrain, or coerce any employee in or because of the exercise of any right guaranteed under this Act.
(b) Refuse to bargain collectively in good faith with the public employer or its designated
representative if the employee organization is an exclusive representative.
(c) Refuse or fail to comply with any provision of this Act or with rules and regulations established by the Board pursuant to its responsibility to regulate the conduct of collective bargaining under this Act.
(d) Refuse to reduce an agreement, reached as a result of collective bargaining, to writing and sign the resulting contract.
(e) Distribute organizational literature or otherwise solicit public school employees during working hours in areas where the actual work of public school employees is being performed in such a way as to hinder or interfere with the operation of the public school emoloyer. This subsection shall not be construed to prohibit the distribution of literature during the employee's lunch hour or duty-free lunch period or in such areas not specifically devoted to the performance of the employee's official duties.
(f) Hindering or preventing (by threats, intimidation, force, or coercion of any kind) the pursuit of any lawful work or employment by any person, or unreasonably interfering with the entrance to or egress from any place of employment.
(g) Instigating or advocating support, in any positive manner, for an employee organization's activities from students on school property.
§4008. Processing of Unfair Labor Practice Complaints
(1) The Board is empowered and directed to prevent any unfair labor practice and to issue appropriate remedial orders. Whenever it is charged that anyone has engaged or is engaging in any unfair practice as describe in §4007(1) and (2), the Board or any designated agent thereof shall have authority to issue and cause to be served upon such party a complaint stating the specific unfair practice charge and including a notice of hearing containing the date and place of hearing before the Board or any designated agent thereof. Evidence shall be taken and filed with the Board.
(2) If, upon all the evidence taken, the Board shall determine that any party charged has engaged or is engaging in any such unfair practice, the Board shall state Its findings of feet and conclusions of law and issue and cause to be served on such party an order requiring such party to cease and desist from such unfair practice, and to take such reasonable affirmative action as will effectuate the policies of this Act, such as payment of damages and/or the reinstatement of employee. lf, upon the evidence taken, the Board shall determine that any party charged has not engaged or is not engaging in any such unfair practice, the Board shall state, in writing, its findings of fact and conclusions of law and issues and dismiss the complaint.
(3) In addition to the powers granted by this section, the Board shall have the power, at any time during proceedings authorized by this section, to issue orders providing such temporary or preliminary relief as the Board deems just and proper.
§4009. Appeals, Petitions for Enforcement
(1) Any person adversely affected by a decision of the Board under §4008 of this Act may appeal that decision to the Chancery Court of this State. Such an appeal must be filed within fifteen (15) days of the date upon which the decision was rendered and shall not automatically act as a stay.
(2) The Board may petition the Chancery Court of this State for enforcement of any order issued under §4008 of this Act.
§4010. Bargaining Unit Determination
(1) An employee organization desiring to be certified as the exclusive representative shall file a petition with the Board, accompanied by the uncoerced signatures of at least thirty percent (30%) of the public school employees In the unit claimed to be appropriate, indicating a desire to be represented for the purpose of bargaining collectively with the public employer.
(1) If the Board or its duly authorized designee determines that a petition Is properly filed and is accompanied by the requisite number of valid signatures, the Board or its designee shall proceed toward defining the appropriate bargaining unit by setting a date for hearing on the matter. If a petition is not properly filed and/or if it is not accompanied by the requisite number of valid signatures, the Board or its designee shall dismiss the petition.
(2) After holding such hearings as it deems necessary the Board shall determine the appropriate bargaining unit. The Board may, by rule, delegate its unit definition authority to one or more of its members or to its executive director, provided that a unit definition order may be subject to review by the Board at the request of any party or upon the Board's own motion in accordance with rules and procedures established by the Board.
(4) In making its determination as to the appropriate bargaining unit, the Board or its designee shall consider such factors as the similarity of duties, skills, and working conditions of the employees involved; the history and extent of the employee organization; the recommendations of the parties involved; the effect of over-fragmentation of bargaining units on the efficient administration of government; and such other factors as the Board may deem appropriate.
(5) Procedures for redefining or modifying a unit shall be set forth in the rules and procedures established by the Board.
(6) Any bargaining unit designated as appropriate prior to the effective date of this Act, for which an exclusive representative has been certified, shall so continue without the requirement of a review and possible re-designation until such time as a question concerning appropriateness is properly raised under this Act. The appropriateness of the unit may be challenged by the public school employer, thirty percent (30%) of the members of the unit, an employee organization, or the Board not more than one hundred and eighty (180) days nor less than one hundred and twenty (120) days prior to the expiration of any collective bargaining agreement in effect on the date of the passage of this Act. The continued appropriateness of any bargaining unit designated as appropriate prior to the effective date of this Act, for which an exclusive representative is not certified, may be challenged by the public school employer, thirty percent (30%) of the members of the unit, an employee organization, or the Board at any time up until thirty (30) days prior to the holding of an election to determine representation.
§4011. Determination and Certification of Exclusive Representative
(1) Any employee organization seeking certification as exclusive representative in a designated appropriate bargaining unit shall file a petition with the Board. The petition must contain the uncoerced signatures of at least thirty percent (30%) of the employee within the designated appropriate bargaining unit. If the designated appropriate bargaining unit is sufficiently similar to the bargaining unit claimed to be appropriate in the petition filed pursuant to §4010(1), such that the signatures submitted at that time represent at least thirty percent (30%) of the employees within the designated appropriate bargaining unit, those signatures shall be deemed sufficient for the purpose of this subsection. If the designated bargaining unit is not sufficiently similar to the bargaining unit claimed to be appropriate, the employee organization may continue to rely on the previously submitted uncoerced signatures of the employees who are in the designated bargaining unit and must supplement these signature with uncoerced signatures of other employees within the desigated appropriate bargaining unit, such that the signatures submitted represent at least thirty percent (30%) of the employees within the designated appropriate bargaining unit. No signature shall be considered valid if it was signed more than twelve (12) months prior to the date on which the petition is filed.
(2) Where an employee organization has been certified as the exclusive representative, a group of employees within the bargaining unit may file a petition with the Board for decertification of the exclusive bargaining representative. The petition must contain the uncoerced signatures of at least thirty percent (30%) of the employees within the bargaining unit and allege that the employee organization presently certified is no longer the choice of the majority of the employees in the bargaining unit. If a lawful collective bargaining agreement of no more than three (3) years' duration is in effect, no petition shall be entertained unless filed not more than one hundred and eighty (180) days not less than one hundred and twenty (120) days prior to the expiration of such agreement. A decertification petition also may be filed if more than one (1) year has elapsed from the date of certification of an exclusive bargaining representative and no collective bargaining agreement has been executed.
(3) If the Board determines that a petition is properly supported, timely filed, and covers the designated appropriate bargaining unit, the Board shall cause an election of all eligible employees to be held within a reasonable time after the unit determination has been made, in accordance with procedures adopted by the Board, to determine if and by whom the employees wish to be represented. The election ballot shall contain, as choices to be made by the voter, the name of the petitioning or certified employee organization, the name or names of any other employee organization showing written proof of at least ten percent (10%) representation of the public school employees within the designated appropriate bargaining unit, in accordance with rules and procedures adopted by the Board, and a choice that the public school employee does not desire to be represented by any of the named employee organization(s).
(4) The employee organization, if any, which receives the majority of the votes cast in an election shall be certified by the Board as the exclusive representative. In any election where there are more than two (2) choices on the ballot and none of the choices receives a majority of the votes cast, a run-off election shall be conducted. The ballot in the run-off election shall contain the two (2) choices on the original ballot that received the largest number of votes.
(5) No election shall be held pursuant to this section within twelve (12) months from the date of a preceding valid election.
§4012. Employee Organizations Required to Register and to Submit Annual Reports
Every employee organization which has or seeks recognition as a represenative of public school employees under the provisions of this Act shall file with the Board a registration report, signed by its president or other appropriate officer. Such report shall be updated on an annual basis by any organization which continues to have or seeks recognition, shall be in a form prescribed by the Board, and shall be accompanied by two (2) copies of the employee organization's constitution and bylaws. All changes or amendments to such constitutions and bylaws shall 5e promptly reported to the Board.
§4013. Collective Bargaining Agreements
(1) Collective bargaining shall commence at least ninety (90) days prior to the expiration date of any current collective bargaining agreement or in the case of anewly certified exclusive representative, within a reasonable time after certification.
(2) Negotiating sessions, including strategy meetings of public School employers, mediation, and the deliberative process of fact-finders and arbitrators, shall be exempt from the provisions of 29 Del. C., Chapter 100. Hearings conducted by fact-finders shall be open to the public.
(3) The public school employer and the exclusive bargaining representative shall negotiate written grievance procedures by means of which bargaining unit employees, through their collective bargaining representatives, may appeal the interpretation or application of any term or terms of an existing collective bargaining agreement; such grievance proecures shall be included in any agreement entered into between the public school employer and the exclusive bargaining representative.
(4) Any contract or agreement reached between a public shcool district and any exclusive representative organization shall be for a minimum period of two (2) years from the effective date of such contract or agreement, unless otherwise mutually agreed upon by the public school employer and the exclusive representative.
(5) No collective bargaining agreement shall be valid or enforceable if its implementation would be inconsistent with any statutory limitation on the public school employer's funds, spending, or budget, or would otherwise be contrary to law.
(6) Public school employers shall file with the Board a copy of any agreements that have been negotiated with public school employee representatives following the consummation of negotiations. The Board shall maintain a current file of all such agreements.
§4014. Collective Bargaining Impasse
(1) If, after a reasonable period of negotiations over the terms of an agreement or after a reasonable time following certification of an exclusive representative, no agreement has been signed, the parties may voluntarily submit to mediation. If, however, no agreement is reached between the parties by sixty (60) days prior to the expiration date of an existing collective bargaining agreement, or, in the case of a newly certified exclusive representative, within sixty (60) days after negotiations have commenced, both parties shall immediately notify the Board of the status of negotiations.
(2) If the parties have not voluntarily agreed to enlist the services of a mediator and less than thirty (30) days remain before the expiration date of the existing collective bargaining agreement, or, in the case of a newly certified exclusive representative, more than ninety (90) days have elapsed since negotiations began, the Board must appoint a mediator if so requested by the public school employer or the exclusive bargaining representative. The mediator shall be chosen from a list of qualified persons maintained by the Board and shall be representative of the public.
(3) If the labor dispute has not been settled after a reasonable period of mediation, during which both parties have made a good faith effort to settle their differences, the parties Jointly or individually may petition the Board in writing to initiate fact-finding. In lieu of a petition, the mediator may inform the Board that further negotiations between the parties, at that time, are unlikely to be productive and recommend that feet-finding be initiated. The public school employer and the exclusive bargaining representative may initiate fact-finding at any time, by mutual agreement.
(4) Any costs involved in retaining a mediator to assist the parties in reaching a negotiated agreement shall be paid by the Board.
§4015. Fact Finding
(1) Within seven (7) working days of receipt of a petition or recommendation to initiate fact-finding, the Board shall make a determination, with or without a formal hearing, as to whether a good faith effort has been made by both parties to resolve their labor dispute through collective negotiations and mediation and as to whether the initiation of fact-finding would be appropriate and in the public interest.
(2) If the Board initiates fact-finding, the public school employer and the exclusive bargaining representative may, by mutual agreement, select their own fact-finder.
(3) Where the parties have not selected their own fact-finder within seven (7) working days after the fact-finding has-been initiated, the Board shall submit to the parties a list of five (5) qualified, disinterested persons. Only those persons who possess the qualifications contained in §4006(4) of this Act will be considered minimally qualified and disinterested. Each party shall alternatively strike two (2) names from the list. The order of striking shall be determined by lot. The remaining individual shall be designated the fact-finder.
(4) When the parties have not designated the fact-finder and notified the Board of their choice within five (5) working days after receipt of the list, the Board shall appoint the fact-finder from the list. However, if one of the parties strikes the names as prescribed in this section and the other party fails to do so, the Board shall appoint the fact-finder only from the names remaining on the list.
(1) The fact-finder shall hold hearings in order to define the area or areas of dispute, to determine facts relating to the dispute, and to render a recommendation on unresolved contract issues. The hearings shall be held at times, dates, and places to be established by the fact-finder in accordance with rules promulgated by the Board. The fact-finder shall be empowered to administer oaths and issue subpoenas on behalf of the parties to the dispute or on his own behalf.
(6) The fact-finder shall make written findings of facts and recommendations for the resolution of the dispute. In arriving at recommendations, the fact-finder shall specify the basis for his findings, taking into consideration, in addition to any other relevant factors, the following:
(a) The interests and welfare of the public.
(b) Comparison of the wages, salaries, benefits, hours and conditions of employment of the employees involved in the fact-finding proceedings with the wages, salaries, benefits, hours, and conditions of employment of other employees performing the same or similar services or requiring similar skills under similar working conditions and with other employees generally in the same community and in comparable communities and in private employment in the same community and in comparable communities.
(c) The overall compensation presently received by the employees inclusive of direct wages, salary, vacations, holidays, excused leaves, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
(d) Increases in the average weekly wages earned in the private sector within the State of Delaware as computed by the Department of Labor.
(e) Stipulations of the parties.
(f) The lawful authority of the public school employer.
(g) The financial ability of the public school employer based on existing revenues, to meet the costs of any proposed settlement; provided that, any enhancement to such financial ability derived from savings experienced by such public school employer as a result of a strike shall not be considered by the fact-finder; find further provided that the 'certification of available revenue' adopted by the Educational Finance Overview Committee pursuant to 14 Del. C. 18, shall be used by the fact-finder as the true statement of the financial ability of any public school employer covered by 14 Del. C. 18.
(h) Such other factor not confined to the foregoing which are normally or traditionally taken into consideration in the determination of wages, hours, and conditions of employment through voluntary collective bargaining, mediation, fact-finding, or otherwise between parties, in the public service or in private employment.
(7) Within thirty (30) days after the conclusion of the hearings but not later than forty-five (45) days from the day of appointment, the fact-finder shall serve his written findings of fact and recommendations for resolution of the dispute on the public school employer, the certified exclusive representative, and the Board.
(1) Not more than five (5) working days after the findings and recommendations have been served, the Board shall hold a meeting which shall include the fact-finder, representatives of the public school employer, and representatives of the exclusive bargaining representative, for the purposes of discussing the fact-finder's recommendations and determining whether the parties are able to conclude their labor dispute at that time with a voluntarily reached agreement.
(9) If the dispute continue, the Board shall forthwith publicize the fact-finder's findings of fact and recommendations along with position statements by the accepting and rejecting parties.
(10) The cost of fact-finding shall be borne equally by the parties involved in the dispute.
(11) Nothing in this Act shall be construed to prohibit or otherwise impede a public school employer and a certified exclusive representative from continuing to bargain in good faith over terms and conditions of employment or from using the services of amediator at any time during the conduct of collective bargaining. If, at any point in the impasse proceedings invoked under this Act, the parties are able to conclude their labor dispute with a voluntarily reached agreement, the Board shall be so notified, and all impasse resolution proceedings shall be forthwith terminated.
§4016. Prohibition of Strikes
(1) No public school employees shall strike while in the performance of his or her official duties.
(2) No public school employee shall be entitled to any daily pay, wages, reimbursement of expenses, benefits or any consideration In lieu thereof, for the days on which he engaged in a strike.
(3) Where a public school employee has lost entitlement to any daily pay or other consideration pursuant to subsection (2) of this section, any agreement between such public school employee or employee organization bargaining on his behalf and a public school employer which provided for the direct or indirect restoration of such entitlment shall be void as against public policy.
(1) Chancery Court is vested with the authority to hear and determine all actions alleging violation of §4016 of this Act. Suits to enjoin violations of §4016 will have priority over all matters on the Courts docket except other emergency matters.
(2) Where it appears that any public school employee group of employees, employee organizations, or any officer or agent thereof, threaten or are about to do, or are doing, any act in violation of §4016, the public school employer may forthwith apply to the Court of Chancery for an injuction against such violation.
(3) If an order of the Court enjoining or restraining a violation of §4016 does not receive immediate compliance, the public school employer shall apply to the Court for appropriate contempt sanctions against any party in violation of such order. Upon a proper showing that any person or organization has failed to comply with such an order, the Court shall, In addition to any other remedy it deems appropriate, fine such violating party an amount on a daily, weekly or monthly basis without limitation as determined by the Court.
(4) In determining an appropriate amount for fines imposed pursuant to subsection (3), the Court shall consider and receive evidence of:
(a) The extent and value of services lost due to the violation of §4016.
(b) Any unfair labor practices committed by either party during the collective bargaining process.
(c) The extent of the willful defiance or resistance to the Court's order.
(d) The impact of the strike on the health, safety, and welfare of the public.
§4018. Status of Existing Exclusive Representative
An employee organization that has been certified as the exclusive representative of a bargaining unit deemed to be appropriate prior to the effective date of this Act shall so continue without the requirement of an election and certification until such time as a question concerning representation is appropriately raised under this Act in accordance with §4011(2), or until the Board would find the unit not to be appropriate in accordance with §4010(6).
If tiny provision of this Act or the application of such provision to any person or circumstance Is held invalid, the remainder of this Act or the application of such provision to persons of circumstances other than those to which it is hold invalid shall not be affected thereby."
Section 2. This Act shall be effective sixty MO days following the appropriation by the General of sufficient funds for the purposes sot forth in this AM.
Section 3. In the event implementation of this Act in any operating budget, then notwithstanding such lack of appropriation the portions of this Act which are not dependent on an appropriation act shall nevertheless continue to be valid and effective.
Section 4. This Act shall not apply to any contract negotiations between a public school employer and its employees initiated, pending, or in litigation prior to the enactment of this Act into law and said negotiations shall be controlled by 57 Delaware Laws Chapter 298.
Approved July 7, 1982