CHAPTER 178

FORMERLY

SENATE BILL NO. 36

AS AMENDED BY

SENATE AMENDMENT NOS. 1 & 2

AN ACT TO AMEND TITLES 19 AND 29 OF THE DELAWARE CODE RELATING TO COLLECTIVE BARGAINING.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Chapter 13, Title 19 of the Delaware Code by adding a new §1311A thereto as follows:

Ҥ1311A. Collective bargaining in the State Service.

(a) Notwithstanding any other provision in this Code, exclusive representatives of State merit employees, who are in the classified service and not working in higher education, shall collectively bargain in the units provided pursuant to subsection (b) of this section. The scope of bargaining shall include: (1) Compensation, which shall be defined as the payment of money in the form of hourly or annual salary, and any cash allowance or items in lieu of a cash allowance to a public employee by reason of said employee’s employment by a public employer, as defined in this chapter, whether the amount is fixed or determined by time, task or other basis of calculations. Position classification, health care and other benefit programs established pursuant to Chapters 52 and 96 of Title 29, workers compensation, disability programs and pension programs shall not be deemed to be compensation for purposes of this section; and (2)any items negotiable for state merit employees pursuant to Section 5938 of Title 29. To the extent or where any of these items are covered by existing collective bargaining agreements, the provisions negotiated pursuant to subsection (c) of this section shall supersede those agreements.

(b) For purposes of bargaining pursuant to this section, employees shall be classified in the following bargaining units, each of which shall independently bargain compensation:

1. Labor, maintenance, trade, and service workers which is composed of generally recognized blue collar and service classes including mechanics, highway, building and natural resource maintenance, skilled craft, equipment operators, toll collectors, food service, custodial, laundry, laborers, security officers and similar classes;

2. Non-professional patient care workers which is composed of institutional care classes including licensed practical nurses, nursing assistants, active treatment assistants, technicians, therapy aides, and similar classes;

3. Social services, human services, and counseling which is composed of social workers, social service specialists, family therapists, parole and probation officers, youth counselors, teacher aides, activity aides, job service personnel, income maintenance personnel, eligibility specialists, vocational counselors, correctional counselors, child support enforcement personnel and similar classes;

4. Administrative support, technical and clerical which is composed of administrative specialists, clerks, account technicians, computer operators, office service personnel, officer workers, paralegals and similar nonprofessional classes;

5. Engineers, and administrative professionals which is composed of civil, environmental and other engineers, accountants, management analysts, fiscal officers, program managers, business professionals, auditors and similar professionals classes exempt from the Fair Labor Standards Act;

6. Professional patient care which is composed of registered nurses, public health nurses, psychiatric nurses, therapists, dietitians and similar professional classes;

7. Professional education and library science which is composed of state agency teachers, counselors and librarians;

8. Regulatory licensing and inspectors which is composed of employees empowered to review certain public and business activities including fire marshals, regulatory inspectors, field auditors, motor vehicle inspectors and similar classes;

9. Law enforcement and investigative agents which is composed of agency police officers, natural resource and environmental control officers, alcoholic beverage control officers, investigators, and similar occupations;

10. Correctional officers and similar correctional occupations;

11. Correctional supervisors which is composed of correctional lieutenants, staff lieutenants, correctional captains and similar occupations.

12. Scientists and medical professionals which is composed of biologists, chemists, agricultural specialists, pharmacists, psychologists, psychiatrists, physicians, pathologists and similar occupations.

The Board shall determine the proper assignment of job classifications to bargaining units and the bargaining unit status of individual employees and shall provide for certified bargaining representatives to combine bargaining units or portions of bargaining units of employees they represent within the bargaining units defined in this section based upon the job classifications of the employees represented.

(c) The exclusive bargaining representatives of all of the employees in each individual bargaining unit identified above shall join together in a bargaining coalition to bargain collectively for that unit. Employee organizations that are part of the coalition shall exercise authority over decisions of the coalition proportional to the number of employees exclusively represented in the coalition by the employee organization. To the extent a finalized agreement on compensation items requires legislative approval or the appropriation of funds, the Governor shall recommend the same to the General Assembly for the ensuing fiscal years and the agreement provision requiring such appropriation shall be contingent on the specific appropriation of funds by the General Assembly. In the event the General Assembly fails to appropriate the funds necessary to implement the provision of an agreement, that provision shall be returned to the parties for negotiation or the provision may be implemented to the extent consistent with or limited by appropriations from the General Assembly, at the discretion of the General Assembly. Contracts shall be timed to become effective in accordance with the state’s fiscal year.

(d) Coalition compensation agreements shall not constitute a bar to an election in accordance with §1311(b) of this Title. Such bar shall be established by the non-compensation agreement covering employees in an appropriate unit.

(e) Notwithstanding any other provision in this Code to the contrary, where no employee organization is certified to represent some or all of the employees in a bargaining unit defined in subsection (b) of this section, an employee organization desiring to be certified as the exclusive representative of the unrepresented employees in such unit shall file a petition with the Board, accompanied by a combination of the un-coerced signatures of at least 30 percent of the unrepresented State employees in a unit described in said subsection (b). Alternatively, an employee organization may file a petition with the Board, accompanied by the un-coerced signatures of at least 30% of the combined total of unrepresented State employees and State employees currently represented by the petitioning employee organization in a unit described in said subsection (b). The Board or its designee shall act on such petition in accordance with §§1310 and 1311 of this Title. Nothing contained herein shall be deemed to prevent a public employer from voluntarily recognizing an employee organization as the exclusive bargaining representative for a specified bargaining unit without an election so long as the following conditions have been met: (1) a petition shall have been filed with the Board by an employee or group of employees or employee organization acting in their behalf alleging that a majority of employees in a unit identified in subsection (b) above wish to be represented by an employee organization for such purposes; and (2) the Board verifies that a majority of the employees in such unit have, within 12 months of the submission of the petition to the Board, signed authorizations designating the employee organization specified in the petition as their exclusive bargaining representative and that no other employee organization is currently certified or recognized as the exclusive bargaining representative of any of the employees in the unit; and (3) the Board determines that notices have been posted, where notices to affected employees are normally posted, for a period of at least ten (10) calendar days, advising that exclusive recognition will be granted without an election to a named employee organization for such unit.

(f) Notwithstanding any provision in this Code to the contrary, collective bargaining pursuant to this section shall commence at least 150 days prior to the expiration date of any current collective bargaining agreement or in the case of a newly certified representative within a reasonable time after certification.

(g) Notwithstanding anything in this section to the contrary, a bargaining unit created pursuant to the provisions of subsection (b) of this section, shall not bargain for compensation as defined herein until all of the eligible employees in such unit are represented by an exclusive bargaining representative. Nothing contained in this subsection shall be interpreted to deny bargaining for any items negotiable for state merit employees pursuant to 29 Del. C. §5938.”

Section 2. Amend §1302 (d), Title 19 of the Delaware Code by adding the words “or demonstration of majority representation in accordance with §1311A (e) of this Title” after the word “election” and before the last comma in the first sentence thereof.

Section 3. Amend § 1314, Chapter 13, Title 19, Delaware Code by striking said section in its entirety and substituting in lieu thereof the following:

"§1314. Mediation.

(a) 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 90 days prior to the expiration of an existing collective bargaining agreement, or, in the case of a compensation bargaining unit of non-higher education State employees at least 120 days prior to the expiration date of an existing collective bargaining agreement or in the case of a newly certified representative within 60 days after negotiations have commenced, both parties shall immediately notify the Board of the status of negotiations.

(b) If the parties have not voluntarily agreed to enlist the services of a mediator and less than 75 days remain before the expiration of an existing collective bargaining agreement, or, in the case of a compensation bargaining unit of non-higher education State employees at least 90 days prior to the expiration date of an existing collective bargaining agreement or in the case of a newly certified representative more than 90 days have elapsed since negotiations began, the Board must appoint a mediator if so requested by the public employer or the exclusive bargaining representative. The mediator shall be chosen from a list of qualified persons maintained by the Board upon mutual agreement of the parties or from the American Arbitration Association, and shall be representative of the public.

(c) If the labor dispute has not been settled within 30 days after mediation has been requested or less than 60 days remain before the expiration of an existing collective bargaining agreement, the parties jointly or individually may petition the Board in writing to initiate binding arbitration. 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 binding arbitration be initiated. The public employer and the exclusive bargaining representative may initiate binding arbitration at any time by mutual agreement. The arbitrator shall be chosen from a list of qualified persons maintained by the Board upon mutual agreement of the parties or from the American Arbitration Association, and shall be representative of the public.

(d) Any costs involved in retaining a mediator to assist the parties in reaching a negotiated agreement shall be paid by the Board."

Section 4. Amend § 1315, Chapter 13, Title 19, Delaware Code by striking said section in its entirety and substituting in lieu thereof the following:

"§ 1315. Binding interest arbitration.

(a) Within seven working days of receipt of a petition or recommendation to initiate binding arbitration, 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 negotiations and mediation and shall certify the parties at impasse and authorize the initiation of binding arbitration procedures except that any discretionary subject shall not be subject to binding arbitration.

(b) Pursuant to § 4006(f) of Title 14, the Board shall appoint the Executive Director or their designee to act as binding interest arbitrator subject to agreement of the parties. Such delegation shall not limit a party's right to appeal to the Board. If the parties do not agree to use the Executive Director as the binding interest arbitrator the parties shall select an arbitrator by mutual agreement. If the parties cannot agree on an arbitrator, either party may request a list of nine arbitrators from the American Arbitration Association. One arbitrator shall be chosen by the parties by alternately striking names from such list. Who strikes first shall be determined by coin toss. Nothing herein shall prevent the parties from mutually agreeing to alternative methods to achieve a final and binding resolution of any impasse.

(c) The arbitrator shall hold hearings in order to define the area or areas of dispute, to determine facts relating to the dispute, and to render a decision on unresolved contract issues. The hearings shall be held at times, dates and places to be established by the arbitrator. The arbitrator shall be empowered to administer oaths and issue subpoenas on behalf of the parties to the dispute or on the arbitrator's own behalf.

(d) The arbitrator shall make written findings of facts and a decision for the resolution of the dispute; provided, however, that the decision shall be limited to a determination of which of the parties' last, best, final offers shall be accepted in its entirety. In arriving at a determination, the arbitrator shall specify the basis for the arbitrator's findings, taking into consideration, in addition to any other relevant factors, the following:

(1) The interests and welfare of the public.

(2) Comparison of the wages, salaries, benefits, hours and conditions of employment of the employees involved in the arbitration 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 in the same community and in comparable communities and with other employees generally in the same community and in comparable communities.

(3) 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.

(4) Stipulations of the parties.

(5) The lawful authority of the public employer.

(6) The financial ability of the public employer, based on existing revenues, to meet the costs of any proposed settlements; provided that any enhancement to such financial ability derived from savings experienced by such public employer as a result of a strike shall not be considered by the arbitrator.

(7) Such other factors 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, binding arbitration or otherwise between parties, in the public service or in private employment.

In making determinations, the arbitrator shall give due weight to each relevant factor. All of the above factors shall be presumed relevant. If any factor is found not to be relevant, the arbitrator shall detail in the arbitrator's findings the specific reason why that factor is not judged relevant in arriving at the arbitrator's determination. With the exception of paragraph (6) of this subsection, no single factor in this subsection, shall be dispositive.

(e) Within 30 days after the conclusion of the hearings but not later than 120 days from the day of appointment, the arbitrator shall serve the arbitrator's written determination for resolution of the dispute on the public employer, the certified exclusive representative and the Board. The decision of the arbitrator shall become an order of the Board within 5 business days after it has been served on the parties.

(f) The cost of binding arbitration shall be borne equally by the parties involved in the dispute.

(g) Nothing in this chapter shall be construed to prohibit or otherwise impede a public employer and certified exclusive representative from continuing to bargain in good faith over terms and conditions of employment or from using the services of a mediator at any time during the conduct of collective bargaining. If at any point in the impasse proceedings invoked under this chapter, 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.

(h) Notwithstanding any language to the contrary, any arbitration results rendered pursuant to this section involving collective bargaining agreements, negotiations or mediations with the State involving 19 Del.C. § 1311A, shall be contingent upon appropriation by the General Assembly."

Section 5. Amend §5938(c), Title 29 of the Delaware Code by adding the following immediately after “Title 19” and before the colon in said subsection: “, except in the case of collective bargaining agreements reached pursuant to §1311A of Title 19 of this Code”.

Section 6. Prior to the successful completion of the Enterprise Resource Planning project, collective bargaining agreements reached pursuant to Section 1 of this Act shall be compatible with the administrative capabilities of the State. Any determination by the State that implementation of a negotiated agreement would be incompatible with its administrative capabilities shall not be arbitrary or capricious, and arbitrators shall not substitute their judgment for that of the State in applying this standard. The proper application of this standard shall be subject to the requirement to negotiate in good faith and may be reviewed by the Board. This section shall not be applicable upon certification by the Secretary of Finance, the Director of the Department of Technology and Information and the Controller General that the statewide implementation of the Enterprise Resource Planning project has been successfully completed or to collective bargaining agreements negotiated subsequent to December 31, 2009.

Approved August 2, 2007