§ 1301 Statement of policy.
It is the declared policy of the State and the purpose of this chapter to promote harmonious and cooperative relationships between public employers and their employees and to protect the public by assuring the orderly and uninterrupted operations and functions of the public employer. These policies are best effectuated by:
(1) Granting to public employees the right of organization and representation;
(2) Obligating public employers and public employee organizations which have been certified as representing their public employees to enter into collective bargaining negotiations with the willingness to resolve disputes relating to terms and conditions of employment and to reduce to writing any agreements reached through such negotiations; and
(3) Empowering the Public Employment Relations Board to assist in resolving disputes between public employees and public employers and to administer this chapter.
§ 1302 Definitions.
(a) "Appropriate bargaining unit" or "bargaining unit" means a group of public employees designated by the Public Employment Relations Board as appropriate for representation by an employee organization for purposes of collective bargaining.
(b) "Binding interest arbitration" means the procedure by which the Public Employment Relations Board shall make written findings of fact and a decision for final and binding resolution of an impasse arising out of collective bargaining.
(c) "Board" means the Public Employment Relations Board established by § 4006 of Title 14 and made applicable to this chapter by § 1306 of this title.
(d) "Certification" means official recognition by the Board, following a secret-ballot election or demonstration of majority representation in accordance with § 1311A(e) of this title, that an employee organization is the exclusive representative for all employees in an appropriate bargaining unit.
(e) "Collective bargaining" means the performance of the mutual obligation of a public 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.
(f) "Confidential employee" means any employee whose essential job function and advanced knowledge about the issues involved in collective bargaining would make it unduly burdensome for the employer to negotiate effectively if the employee were a member of an appropriate bargaining unit.
(g) "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.
(h) "Discretionary subject" means, for the State as an employer only, any subject covered by merit rules which apply pursuant to § 5938(c) of Title 29, and which merit rules have been waived by statute.
(i) "Employee organization" means any organization which admits to membership employees of a public 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.
(j) "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.
(k) "Fair share fee" means a fee that a nonmember shall be required to pay to the nonmember's exclusive representative to offset the nonmember's pro rata share of the exclusive representative's expenditures. Such fee shall be equal in amount to regular membership dues that a member of the exclusive representative's affiliated organizations, provided that the exclusive representative establishes and maintains a procedure by which any nonmember fee payer may obtain a rebate.
(l) "Impasse" means the failure of a public employer and the exclusive bargaining representative to reach agreement in the course of collective bargaining.
(m) "Mediation" means an effort by an impartial third-party confidentially to assist in reconciling an impasse between the public employer and the exclusive bargaining representative regarding terms and conditions of employment.
(n) "Nonmember" means an employee who is not a member of the exclusive representative but whom the exclusive representative is required to represent pursuant to this chapter.
(o) "Public employee" or "employee" means any employee of a public employer except:
(1) Any person elected by popular vote or appointed to office by the Governor;
(2) Any person who is a prisoner or inmate or who is otherwise held in lawful custody by an agency of the State;
(3) Any person appointed to serve on a board or commission;
(4) Any employee, as defined in Chapter 40 of Title 14 of a public school employer, as defined in Chapter 40 of Title 14;
(5) Any police officers and firefighters employed by the State or political subdivisions of the State or any agency thereof, or any municipal corporation, municipality, city or town located within the State or any agency thereof which, upon the affirmative legislative act of its common council or other governing body, has elected to come within Chapter 16 of this title, or which hereafter elects to come within Chapter 16 of this title. Any police officers and firefighters included in this subsection shall be subject to Chapter 16 of this title;
(6) Confidential employees of the public employer; and
(7) Supervisory employees of the public employer, provided however, that any supervisory position in a bargaining unit deemed to be appropriate prior to September 23, 1994, shall so continue, unless said unit is decertified in accordance with § 1311(b) of this title, or is modified in accordance with procedures authorized by § 1310(e) of this title.
(p) "Public employer" or "employer" means the State, any county of the State or any agency thereof, and/or any municipal corporation, municipality, city or town located within the State or any agency thereof, which upon the affirmative legislative act of its common council or other governing body has elected to come within the former Chapter 13 of this title or which hereafter elects to come within this chapter, or which employs 100 or more full-time employees.
(q) "Rebate" means that portion of a nonmember's pro rata share of the expenditures of the exclusive representative which are not made for purposes pertaining to the collective bargaining process, contract administration or pursuit of matters affecting wages, hours and other conditions of employment.
(r) "Strike" means a public employee's failure, in concerted action with others, to report for duty, or a public employee's wilful absence from a public employee's position, or a public employee's stoppage or deliberate slowing down of work, or a public employee's withholding in whole or in part from the full, faithful and proper performance of a public employee's duties of employment, or a public employee's involvement in a concerted interruption of operations of a public employer for the purpose of inducing, influencing or coercing a change in the conditions, compensation rights, privileges or obligations of public employment; however, nothing shall limit or impair the right of any public employee to lawfully express or communicate a complaint or opinion on any matter related to terms and conditions of employment.
(s) "Supervisory employee" means any employee of a public employer who has the authority, in the interest of the public employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such actions, if the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment.
(t) "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 chapter or any other law of the State to be within the exclusive prerogative of the public employer.
19 Del. C. 1953, § 1301; 55 Del. Laws, c. 126; 57 Del. Laws, c. 669, §§ 2A, 14A; 59 Del. Laws, c. 156, § 1; 65 Del. Laws, c. 477, § 2; 67 Del. Laws, c. 294, § 1; 67 Del. Laws, c. 404, § 6; 69 Del. Laws, c. 466, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 272, §§ 1, 7; 73 Del. Laws, c. 353, §§ 1-3; 74 Del. Laws, c. 173, § 2; 76 Del. Laws, c. 178, § 2.;
§ 1303 Public employee rights.
Public employees shall have the right to:
(1) Organize, form, join or assist any employee organization except to the extent that such right may be affected by a collectively bargained agreement requiring the payment of a service fee 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 chapter or any other law of the State.
(4) Be represented by their exclusive representative, if any, without discrimination.
§ 1304 Employee organization as exclusive representative.
(a) 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 employer shall not bargain in regard to matters covered by this chapter with any employee, group of employees or other employee organization.
(b) Nothing contained in this section shall prevent employees individually, or as a group, from presenting complaints to a public 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 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, embarrassing and confidential nature, and the complainant specifically requests, in writing, that the exclusive representative not be present.
(c) Upon the written authorization of any public employee within a bargaining unit, the public employer shall deduct from the payroll of the public employee the monthly amount of dues or service fee as certified by the secretary of the exclusive bargaining representative and shall deliver the same to the treasurer of the exclusive bargaining representative. Such authorization is revocable at the employee's written request. Such deduction 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 employer is expressly prohibited from any involvement on the collection of fines, penalties or special assessments levied on members by the exclusive representative.
§ 1305 Public employer rights.
A public 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 employer, its standards of services, overall budget, utilization of technology, the organizational structure and staffing levels and the selection and direction of personnel.
§ 1306 Public Employment Relations Board.
The Board, established by § 4006 of Title 14, known as the "Public Employment Relations Board," shall be empowered to administer this chapter under the rules and regulations which it shall adopt and publish.
§ 1307 Unfair labor practices.
(a) It is an unfair labor practice for a public employer or its designated representative to do any of the following:
(1) Interfere with, restrain or coerce any employee in or because of the exercise of any right guaranteed under this chapter.
(2) Dominate, interfere with or assist in the formation, existence or administration of any labor organization.
(3) Encourage or discourage membership in any employee organization by discrimination in regard to hiring, tenure or other terms and conditions of employment.
(4) Discharge or otherwise discriminate against an employee because the employee has signed or filed an affidavit, petition or complaint or has given information or testimony under this chapter.
(5) Refuse to bargain collectively in good faith with an employee representative which is the exclusive representative of employees in an appropriate unit, except with respect to a discretionary subject.
(6) Refuse or fail to comply with any provision of this chapter or with rules and regulations established by the Board pursuant to its responsibility to regulate the conduct of collective bargaining under this chapter.
(7) Refuse to reduce an agreement, reached as a result of collective bargaining, to writing and sign the resulting contract.
(8) Refuse to disclose any public record as defined by Chapter 100 of Title 29.
(b) It is unfair labor practice for a public employee or for an employee organization or its designated representative to do any of the following:
(1) Interfere with, restrain or coerce any employee in or because of the exercise of any right guaranteed under this chapter.
(2) Refuse to bargain collectively in good faith with the public employer or its designated representative if the employee organization is an exclusive representative.
(3) Refuse or fail to comply with any provision of this chapter or with rules and regulations established by the Board pursuant to its responsibility to regulate the conduct of collective bargaining under this chapter.
(4) Refuse to reduce an agreement, reached as a result of collective bargaining, to writing and sign the resulting contract.
(5) Distribute organizational literature or otherwise solicit public employees during working hours in areas where the actual work of public employees is being performed in such a way as to hinder or interfere with the operation of the public employer. This paragraph shall not be construed to prohibit the distribution of literature during the employee's meal period or duty-free periods or in such areas not specifically devoted to the performance of the employee's official duties.
(6) Hinder or prevent, by threats, intimidation, force or coercion of any kind the pursuit of any lawful work or employment by any person, or interfere with the entrance to or egress from any place of employment.
§ 1308 Disposition of complaints.
(a) The Board is empowered and directed to prevent any unfair labor practice described in § 1307(a) and (b) of this title and to issue appropriate remedial orders. Whenever it is charged that anyone has engaged or is engaging in any unfair practice as described in § 1307(a) and (b) of this title, 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; provided, that no complaint shall issue based on any unfair labor practice occurring more than 180 days prior to the filing of the charge with the Board.
(b)(1) 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 fact 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 chapter, such as payment of damages and/or the reinstatement of an employee; provided however, that the Board shall not issue:
a. Any order providing for binding interest arbitration on any or all issues arising in collective bargaining between the parties involved; or
b. Any order, the effect of which is to compel concessions on any items arising in collective bargaining between the parties involved.
(2) If, 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.
(c) 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 subject to the limitations of subsection (b) of this section.
§ 1309 Appeals; petitions for enforcement.
(a) Any party adversely affected by a decision of the Board under § 1308 or § 1315 of this title may appeal that decision to the Chancery Court of this State. Such an appeal must be filed within 15 days of the date upon which the decision was rendered and shall not automatically act as a stay.
(b) The Board may petition the Chancery Court of this State for enforcement of any order issued under § 1308 or § 1315 of this title.
§ 1310 Bargaining unit determination.
(a) 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 30 percent of the public employees in the unit claimed to be appropriate, indicating a desire to be represented for the purpose of bargaining collectively with the public employer.
(b) 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.
(c) 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 1 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.
(d) In making its determination as to the appropriate bargaining unit, the Board or its designee shall consider community of interests including 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 overfragmentation of bargaining units on the efficient administration of government; and such other factors as the Board may deem appropriate. The Board or its designee shall exclude supervisory employees from all appropriate units created subsequent to September 23, 1994.
(e) Procedures for redefining or modifying a unit shall be set forth in the rules and procedures established by the Board.
(f) Any bargaining unit designated as appropriate prior to September 23, 1994, for which an exclusive representative has been certified, shall so continue without the requirement of a review and possible redesignation until such time as a question concerning appropriateness is properly raised under this chapter. The appropriateness of the unit may be challenged by the public employer, 30 percent of the members of the unit, an employee organization, or the Board not more than 180 days nor less than 120 days prior to the expiration of any collective bargaining agreement in effect on September 23, 1994. The continued appropriateness of any bargaining unit designated as appropriate prior to September 23, 1994, for which an exclusive representative is not certified, may be challenged by the public employer, 30 percent of the members of the unit, an employee organization, or the Board at any time up until 30 days prior to the holding of an election to determine representation.
(g)(1) Two or more certified exclusive representatives of the same public employer may file a joint petition to transfer certain positions between their units. Said joint petition shall be accompanied by the uncoerced signatures of at least 30 percent of the public employees in the positions sought to be transferred, indicating a desire to be represented by the proposed new representative for the purpose of collective bargaining.
(2) The Board shall make a determination as to the appropriateness of the bargaining unit into which the public employees are to be transferred. If the Board determines that the bargaining unit into which the employees are to be transferred is not appropriate, the joint petition shall be denied and the status quo ante shall remain. If the Board determines that the bargaining unit is appropriate, the Board shall hold an election on such joint petition to transfer in which only the public employees in each position who would be transferred shall be entitled to vote. The election ballot shall contain 2 options:
a. Continue to be represented by the present exclusive bargaining representative; or
b. Transfer to the proposed exclusive bargaining representative, who shall be named.
(3) The exclusive bargaining representative that receives the majority of the votes of those voting in the elections shall be declared the exclusive bargaining representative for those positions.
§ 1311 Determination and certification of exclusive representative.
(a) 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 30 percent of the employees 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 § 1310(a) of this title, such that the signatures submitted at that time represent 30 percent 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 signatures with uncoerced signatures of other employees within the designated appropriate bargaining unit, such that the signatures submitted represent at least 30 percent of the employees within the designated appropriate bargaining unit. No signature shall be considered valid if it was signed more than 12 months prior to the date on which the petition is filed.
(b) 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 30 percent 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 3 years' duration is in effect, no petition shall be entertained unless filed not more than 180 days nor less than 120 days prior to the expiration of such agreement. A decertification petition also may be filed if more than 1 year has elapsed from the date of certification of an exclusive bargaining representative and no collective bargaining agreement has been executed, and the procedures for mediation and fact-finding have been invoked and completed as provided in this chapter.
(c) 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 employee organization and the certified employee organization, the name or names of any other employee organization showing written proof of at least 10 percent representation of the public employees within the designated appropriate bargaining unit, in accordance with rules and procedures adopted by the Board, and a choice that the public employee does not desire to be represented by any of the named employee organization(s).
(d) 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 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 2 choices on the original ballot that received the largest number of votes.
(e) No election shall be held pursuant to this section within 12 months from the date of a preceding valid election.
§ 1311A 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 § 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) Nonprofessional 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, 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 [29 U.S.C. § 201 et seq.];
(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, parole and probation officers of the Department of Correction, 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 noncompensation 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 uncoerced signatures of at least 30% of the unrepresented state employees in a unit described in said subsection (b) of this section. Alternatively, an employee organization may file a petition with the Board, accompanied by the uncoerced 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) of this section. 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) of this section 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 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 § 5938 of Title 29.
§ 1312 Employee organizations required to register and submit annual reports.
Every employee organization which has or seeks recognition as a representative of public employees under this chapter shall file with the Board a registration report, signed by its president or other designated 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 2 copies of the employee organization's constitution and bylaws. All changes or amendments to such constitutions and bylaws shall be promptly reported to the Board.
§ 1313 Collective bargaining agreements.
(a) Collective bargaining shall commence at least 90 days prior to the expiration date of any current collective bargaining agreement or in the case of a newly certified exclusive representative within a reasonable time after certification.
(b) Negotiating sessions including strategy meetings of public employers, mediation and the deliberative process of binding interest arbitrators shall be exempt from Chapter 100 of Title 29. Hearings conducted by binding interest arbitrators shall be open to the public.
(c) The public 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 procedures shall be included in any agreement entered into between the public employer and the exclusive bargaining representative.
(d) Any contract or agreement reached between a public employer and any exclusive representative organization shall be for a minimum period of 2 years from the effective date of such contract or agreement unless otherwise mutually agreed upon by the public employer and the exclusive representative.
(e) No collective bargaining agreement shall be valid or enforceable if its implementation would be inconsistent with any statutory limitation on the public employer's funds, spending or budget, or would otherwise be contrary to law.
(f) Public employers shall file with the Board a copy of any agreements that have been negotiated with public employee representatives following the consummation of negotiations. The Board shall maintain a current file of all such agreements.
§ 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 nonhigher 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 nonhigher 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.
§ 1315 Binding interest arbitration.
(a) Within 7 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 the Executive Director's 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 9 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 (d)(6) of this section, 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 § 1311A of this title, shall be contingent upon appropriation by the General Assembly.
§ 1316 Strikes prohibited.
(a) No public employee shall strike while in the performance of official duties.
(b) No public employee shall be entitled to any daily pay, wages, reimbursement of expenses, benefits or any consideration in lieu thereof, for the days on which the employee engaged in a strike.
(c) Where a public employee has lost entitlement to any daily pay or other consideration pursuant to subsection (b) of this section, any agreement between such public employee or employee organization bargaining on the employee's behalf and a public employer which provided for the direct or indirect restoration of such entitlement shall be void as against public policy.
§ 1317 Injunctions.
(a) Chancery Court is vested with the authority to hear and determine all actions alleging violations of § 1316 of this title. Suits to enjoin violations of § 1316 of this title will have priority over all matters on the Court's docket except other emergency matters.
(b) Where it appears that any public 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 § 1316 of this title, the public employer may forthwith apply to the Court of Chancery for an injunction against such violation.
(c) If an order of the Court enjoining or restraining a violation of § 1316 of this title does not receive immediate compliance, the public 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.
(d) In determining an appropriate amount for fines imposed pursuant to subsection (c) of this section, the Court shall consider and receive evidence of:
(1) The extent and value of services lost due to the violation of § 1316 of this title.
(2) Any unfair labor practices committed by either party during the collective bargaining process.
(3) The extent of the wilful defiance or resistance to the Court's order.
(4) The impact of the strike on the health, safety and welfare of the public.
§ 1318 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 September 23, 1994, shall so continue without the requirement of an election and certification until such time as a question concerning representation is appropriately raised under this chapter in accordance with § 1311(b) of this title, or until the Board finds the unit not to be appropriate in accordance with § 1310(f) of this title.
§ 1319 Fair share fees.
(a) Where the provisions of a collective bargaining agreement so provide, a public employer shall deduct a fair share fee from each nonmember's salary or wages and promptly transmit this amount to the exclusive representative.
(b) As a precondition to the collection of fair share fees, the exclusive representative shall establish and maintain a procedure that:
(1) Provides nonmembers with an adequate explanation of the basis for the fee and any rebate;
(2) Provides nonmembers with a reasonably prompt opportunity to challenge the amount of the fee and any rebate before an impartial decision maker; and
(3) Provides an escrow for the amounts reasonably in dispute while such challenges are pending.
A public employer shall not refuse to carry out its obligations under subsection (a) of this section on the grounds that the exclusive representative has not satisfied its responsibilities under this subsection.
(c) In order to avoid undue delays in the receipt of and determination of the validity of fair share fees or rebates, any suit challenging a fair share fee or rebate must be filed within 6 months after receipt of the notice described in subsection (b) of this section or within 6 months after the nonmember exhausts the procedure described in subsection (b) of this section, whichever is later.