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June 12, 2012

A demand is directly related to compensation when its primary characteristic is a modification in the amount or level of compensation and is thus arbitrable

A demand is directly related to compensation when its primary characteristic is a modification in the amount or level of compensation and is thus arbitrable
County of Orange and Sheriff of Orange County and Orange County Deputy Sheriff’s Police Benevolent Association, Inc., 44 PERB ¶3023, U-28693, U-28738 

The Board reaffirmed that a demand is directly related to compensation, and therefore arbitrable under §209.4(g) of the Public Employees’ Fair Employment Act (Act), when its sole, predominant or primary characteristic is a modification in the amount or level of compensation.

In making such a determination, the Board compares the proposal with the lists of subjects specifically identified by the Legislature in §209.4(g) of the Act. The Board, however, reversed the decision in Putnam County Sheriff’s Dept PBA, Inc., 38 PERB ¶3031 (2005), to the extent it held that a proposal seeking a change in the aggregate amount or level of compensation received by unit members from the nonuse of sick leave is nonarbitrable under §209.4(g) of the Act.

The Board concluded that the primary characteristic of such a demand is the monetization of sick leave, a compensatory benefit ordinarily unavailable to public employees.

In addition, the Board reversed Sullivan County Patrolmen’s Benevolent Association, 39 PERB ¶3034 (2006) to the extent it concluded that a proposal seeking to permit the conversion of overtime compensation into compensatory leave and to permit the subsequent remonetization of that leave back into cash or to be applied to health insurance is nonarbitrable because it relates only to “potential” compensation.

The Board held that union proposals in the present cases seeking to permit the conversion of accumulated unused leave time into cash at the time of separation from service were arbitrable under §209.4(g) of the Act because each seeks a form of deferred compensation. However, the Board found that a proposal to increase the amount of compensatory leave time that can be accumulated is nonarbitrable.

Finally, it found a proposal to require an unpaid leave of absence to run currently with leave under the Family Medical Leave Act was nonarbitrable.

PERB reached the same conclusion concerning a unitary demand involving overtime, flex time and scheduling. 

Practice tip noted by PERB staff:  The practical impact of the distinction drawn in §209.4(g) of the Act between arbitrable and nonarbitrable subjects might lead parties to choose to segregate arbitrable subjects from the nonarbitrable in their initial proposals or to sever them during the course of negotiations. While such an approach is not obligatory under §209.4(g) of the Act, it can help avoid unnecessary delays in the issuance of interest arbitration awards and fact-finding reports following an impasse. In contrast, placing arbitrable and nonarbitable subjects into a single demand creates the high risk that the demand will be treated as a nonarbitrable unitary demand. 

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