Rule CUNY Can Set Intellectual Property Policy;
Top Court Upholds PERB Decision; PSC Protests

By REUVEN BLAU

The state's highest court ruled last week that the City University of New York does not need to negotiate its new intellectual property policy, which the Professional Staff Congress argued was a mandatory subject of collective bargaining.

Photo Credit: Amanda Magalhaes HARSH REACTION TO RULING: Professional Staff Congress First Vice President Steve London alleged that the Court of Appeals was either nave or 'openly hostile to workers' rights' in ruling that the City University of New York could impose its policy governing intellectual property without a formal bargaining agreement, provided it consulted the union before doing so.

The Court of Appeals upheld a Public Employment Relations Board ruling which concluded that PSC waived its right to negotiate changes in existing policies when it agreed to a new collective-bargaining contract in March 2002 without resolving the intellectual property issue.

'It's PERB's Call'

"The resolution of an improper practice charge is generally a matter within PERB's sound discretion," the 13-page decision stated. "We also defer to PERB's special knowledge and expertise in determining what constitutes the 'status quo' that the parties must maintain after expiration of a collective bargaining agreement."

The PSC blasted the ruling, labeling it a "conservative" judgment. "It shows either that the justices have little understanding of the realities of public-employee collective bargaining, or that they are openly hostile to workers' rights and the stated policy of the Taylor Law," charged Steve London, the PSC's first vice president.

CUNY spokesman Michael Arena hailed the ruling. "CUNY is gratified that the position that it took has been supported by PERB and up held by the highest court in the state," he said.

Under the copyright policy, which was first enacted in 1972 and later revised in 1986, materials produced by faculty members with the use of funds administered by CUNY's Research Foundation belong to the author, but 65 percent of the royalties must be given to the instructor's college. The extended legal fight began shortly after November 2000, when during contract negotiations between the PSC and CUNY, university officials distributed a draft of intellectual property policy changes to members of an internal committee created to examine the issue.

Expanded CUNY Control

The far-reaching proposals, which were never negotiated with the PSC, included expanding CUNY's copyright policy to all intellectual property produced by members of the university, rather than just to materials developed under grants administered by the research foundation. The changes, which were unilaterally adopted Nov. 18, 2002, also included a new dispute resolution mechanism process.

CUNY officials successfully argued that a provision in the PSC's contract, known as Article 2, allowed it to modify the copyright policy for instructional employees without getting formal approval from the union. CUNY maintained that the Article 2 waiver only requires the university to consult with the PSC before making any copyright changes.

"The intellectual property policy ... fell squarely within the purview of Article 2 since it was never made part of the [collective bargaining agreements] between PSC and CUNY and its alteration did not conflict with any term of the CBA," the Court of Appeals unanimously ruled. "CUNY was therefore not required under the CBA to obtain the union's consent to any change in the intellectual property policy."

Consult Before Acting

The Article 2 waiver authorizes the CUNY Board of Trustees to alter existing bylaws and policies after giving PSC "notice and an opportunity to consult," but without obtaining the union's consent. Under the Triborough doctrine, all the terms of an expired contract, including Article 2, remained in effect, the Court of Appeals ruled.

The PSC contended that the issue should have been negotiated. "It undermines good-faith bargaining in New York State," Mr. London contended. "It gives great deference to PERB."

The PSC represents approximately 17,000 CUNY professors and administrative employees. "It's a loss, but it's pretty discrete," said a PSC official. "It's only relevant when a contract expires. It's very narrow and very specific to the PSC." Originally, the PSC filed an improper labor practice complaint with PERB, contending that CUNY's copyright changes without the union's consent violated Civil Service Law.

Initially, Union Won

A PERB Administrative Law Judge ruled in favor of the union, concluding that Article 2 of the PSC's contract did not waive the union's right "to bargain concerning mandatory subjects affected by CUNY's intellectual property policy." The ALJ also noted that "such a waiver must be clear, unmistakable, and without ambiguity."

CUNY appealed that decision, and PERB surprisingly reversed the ALJ's finding that CUNY had violated its bargaining obligation. PERB concluded that the PSC waived its right to negotiate changes in existing policies when it agreed to a new collective-bargaining contract in March 2002 without resolving the intellectual property issue.

Angered by the PERB decision, the PSC filed an Article 78 complaint, charging that the reversal was arbitrary and capricious. In January, the Appellate Division, First Department ruled to set aside PERB's decision.

"Under PERB's interpretation, PSC's only recourse as far as the issue of intellectual property is concerned, is first to negotiate and attempt to alter the provisions of Article 2 to eliminate the waiver," the Appellate decision said. "However, as long as the waiver is in effect, CUNY would have no incentive to renegotiate Article 2, since its power to change policies unilaterally would continue until a new [collective bargaining agreement] is reached."

The PSC argued that the lower-court ruling should have been upheld. "They essentially deferred to the administrative agency, and made no attempt to interpret or to weight the public policy or legislative intent of the Taylor Law," Mr. London contended, referring to the appeal's decision. "The lower courts understood that there was this imbalance."

Can Negotiate Issue

The appeal's decision pointed out that the PSC could have negotiated a sunset clause to eliminate the Article 2 waiver. The ruling also noted that union has the ability to bargain with CUNY to remove the waiver during upcoming contract negotiations. "Since it is subject to the give-and-take of collective bargaining, the Article 2 waiver is no more likely than any other term of the parties' CBA to continue in perpetuity," the court stated.

Mr. London, however, argued that deficiencies in the Taylor Law have made it difficult for the union to negotiate such contract changes. "Given the nature of the Taylor Law, it doesn't help to box the employee unions in such a way that bargaining is not capable of producing an outcome that's favorable to employees," he remarked.