19 Del. Admin. Code § 3002-5.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 3002-5.0 - Unfair Labor Practice Proceedings

5.1 Pleadings

5.1.1 The Board recognizes that the primary purpose of pleadings is the formation of issues. Consequently, all rules pertaining to pleadings shall be liberally construed towards effecting that end.

5.1.2 All paragraphs of pleadings shall be individually numbered.

5.2 Filing of Charges

5.2.1 A public employer, labor organization, and/or one or more employees may file a complaint alleging a violation of 14 Del.C. § 4007, 19Del.C. § 1607, or 19 Del.C. § 1307. Such complaints must be filed within one hundred and eighty (180) days of the alleged violation. This limitation shall not be construed to prohibit introduction of evidence of conduct or activity occurring outside the statutory period, provided the Board or its agent finds it relevant to the question of commission of an unfair labor practice within the limitations period.

5.2.2 All charges shall be filed with the Executive Director in writing in the form of complaints and shall be signed and sworn to before any person authorized to administer oaths.

5.2.3 The charge shall include the following information:

5.2.3.1 The name, address, telephone number and affiliation, if any, of the charging party, and the title of any representative filing the charge.

5.2.3.2 The name, address, and telephone number of the respondent or respondents, and any other party named in the charge.

5.2.3.3 A clear and detailed statement of the facts constituting the alleged unfair labor practice, including the names of the individuals involved in the alleged unfair labor practice, the time, place of occurrence and nature of each particular act alleged, and reference to the specific provisions of the statute alleged to have been violated. Each fact shall be alleged in a separate paragraph with supporting documentation where applicable.

5.3 Answer to Charge

5.3.1 The respondent shall have seven (7) days within which to file a written Answer. Such Answer shall be specific as to each allegation set forth in the complaint and contain supporting documentation, where applicable. Answers shall be signed by the persons filing them, sworn to before any person authorized to administer oaths and shall then be filed with the Executive Director. A party who fails to file an Answer or to specifically deny allegations in the complaint shall be deemed to have admitted the averments contained in the complaint that are not denied.

5.3.2 All new matter, including but not limited to affirmative defenses such as the jurisdiction of the PERB and the statute of limitations, shall be pleaded in the Answer under a separate heading entitled "New Matter".

5.4 Response to Answer. As to New Matter which is pleaded in the Answer in accord with Regulation 5.3.2 above, the Charging Party shall have five (5) days within which to file a written Response. Such Response should be specific as to each paragraph of new matter set forth in the Answer and contain supporting documentation where applicable. Responses shall be signed by the persons filing them and shall be filed with the Executive Director. A party who fails to file a Response to or to specifically deny allegations of new matter in the Answer shall be deemed to have admitted the new matter contained in the Answer that was not denied.

5.5 Stipulation of Facts. Following the filing of a Complaint, an Answer by the Respondent and a Response by the Petitioner, the parties may jointly submit to the Board a signed stipulation of facts, without a hearing. The request shall state whether the parties desire to present oral argument and/or file briefs.

5.6 Decision or Probable Cause Determination

5.6.1 Upon review of the Complaint, the Answer and the Response, the Executive Director shall determine whether there is probable cause to believe than an unfair labor practice may have occurred. If the Executive Director determines that there is no probable cause to believe that an unfair labor practice has occurred, the party filing the charge may request that the Board review the Executive Director's decision in accord with provisions set forth in Section 7.4. The Board will decide such appeals following a review of the record, and, if the Board deems necessary, a hearing and/or the submission of briefs.

5.6.2 If the Executive Director determines that an unfair labor practice has, or may have occurred, he shall, where possible, issue a decision based upon the pleadings; otherwise he shall issue a probable cause determination setting forth the specific unfair labor practice which may have occurred. Each of the parties shall receive a copy of this determination and a notice of hearing containing the date and place of the hearing which shall be conducted by the Executive Director in accordance with Section 7 herein. A decision based upon the pleadings is subject to review by the Board in accord with the provisions set forth in Section 7.4.

5.7 Informal Conference. At any time during the processing of a Complaint, the Executive Director may, at his discretion, arrange for an informal conference of the parties for purposes such as clarifying issues, reviewing facts, or taking other steps deemed necessary for the fair and expeditious resolution of the issue.

5.8 Amendments of Complaint and/or Answer

5.8.1 At the discretion of the Board, upon due notice to all parties, any complaint may be amended, in such manner as the Board may deem just and proper, at any time before the issuance of a final decision and order, as long as no new cause of action is added after the statute of limitations has run.

5.8.2 Any complaint, amended complaint, or any part thereof, may be dismissed by the Board on its own motion or any charge may, with the approval of the Board, be withdrawn by motion of the complainant at any time before issuance of a final decision and order, upon due notice to all parties.

5.8.3 Subject to the approval of the Board, an Answer may be amended in a timely manner, upon motion of the party filing it. Such motion shall be in writing, unless made at the hearing and before commencement of the testimony. In the event the Complaint is prejudiced by the amendment, a motion for continuance will be granted.

5.9 Prosecuting Authority. All cases in which complaints are actually processed by the Board shall be prosecuted before the Board by the representative of the party filing the charge.

5.10 Hearing. If, based upon the pleading, a hearing is determined to be necessary, the Executive Director or the designated Hearing Officer in the matter shall, wherever possible, schedule a hearing to be held not later than thirty (30) days from the close of the pleadings. Such hearings shall be conducted in accord with the provisions of Section 7.

19 Del. Admin. Code § 3002-5.0