The PSC Alleges That the Draft Policy Impacted Mandatory Subjects of Bargaining

STATE OF NEW YORK

PUBLIC EMPLOYMENT RELATIONS BOARD

CASE NO. U-22948

KENNEDY, SCHWARTZ & CURE (ARTHUR Z. SCHWARTZ of counsel) for

Charging Party

FREDERICK P. SCHAFFER, GENERAL COUNSEL AND VICE CHANCELLOR

FOR LEGAL AFFAIRS (KATHERINE RAYMOND of counsel) for Respondent

DECISION OF ADMINISTRATIVE LAW JUDGE

On November 6, 2001, the Professional Staff Congress-City University of New

York (PSC) filed an improper practice charge which alleged, as amended, that the City

University of New York (CUNY) violated §209-a.1 (d) of the Public Employees' Fair

Employment Act (Act) by refusing to bargain concerning a draft intellectual property

policy in July 2001, and by implementing the policy in November 2002.[1] Specifically,

-and-

CITY UNIVERSITY OF NEW YORK,

Respondent.

In the Matter of

PROFESSIONAL STAFF CONGRESS-

CITY UNIVERSITY OF NEW YORK,

Charging Party,

The PSC alleges that the draft policy impacted mandatory subjects of bargaining,

including but not limited to, compensation, workload and the terms of distance

education.[2] PSC also alleges that CUNY refused to bargain concerning the dispute

resolution procedure in the policy.[3]

The CUNY filed an answer which denied the material allegations of the charge

and raised as affirmative defenses timeliness, laches, that it did not violate its duty to

bargain in good faith because its intellectual property policy is not a mandatory subject

of bargaining, that it had the right to unilaterally act, and waiver.

A hearing was held before me on February 5, 2003. Both parties filed briefs on or

before April 28, 2003.

FACTS

In March 1972, CUNY adopted a copyright and patent policy applicable to

faculty.[4] The copyright policy was established to define the rights of staff members

regarding copyrights of materials produced with funds administered by the Research

Foundation, and related to materials such as writings, films, computer programs and

other material which are able to be copyrighted under the Federal Copyright Act.[5] The

policy, as of 1986, also specified the amount of royalties to be received by an author.

The patent policy, as of 1982, applied to those members who produced

inventions, and established how the proceeds of an invention were to be shared by the

inventor, CUNY, and the inventor's college.[6]

The PSC represents the instructional staff at CUNY and, since 1973, has

entered into a series of collective bargaining agreements with CUNY.[7] In defense of this

charge, CUNY relies upon provisions of the most recent agreement, which are specified

below.

In the fall of 2000, CUNY Chancellor Matthew Goldstein convened an Intellectual

Property Committee, made up of CUNY faculty and staff. The purpose of the committee

was to review the current policies regarding patents and copyright material. The

mandate of the committee was to review current policies in light of the changes in

technology and the emphasis of CUNY on scholarship and research. Its draft policy

made several recommendations.

The parties were engaged in negotiations for a successor agreement to the one

which expired on July 31, 2000. The PSC sought to bargain over the intellectual

property policy during the negotiations for a new agreement, and CUNY refused to

bargain over such policy. The CUNY admits that it did not negotiate with the PSC on

this issue during the course of negotiations.[8] The PSC presented as bargaining

demands that all distance learning material created by a faculty member shall be the

intellectual property of that member, and to change Article 2 of the CBA.[9]

The committee issued a document, dated May 16, 2001, entitled "Draft Revised

Intellectual Property Policy".[10] Counsel for the PSC, by letter dated June 22, 2001 to

Frederick Schaffer, CUNY's vice chancellor for legal affairs, stated that the draft

intellectual property policy should not be issued until the issues raised by the policy are

resolved in collective bargaining. Among those issues which were claimed to be

mandatory subjects of bargaining are workload, compensation, the terms of distance

learning, the development of course work, and the use of research.[11] The policy's

provisions relating to distance learning, compensation, and the resolution of disputes

are set forth in the Appendix to this decision.

Schaffer responded by letter dated July 12, 2001, stating that CUNY does not

have an obligation to bargain with PSC concerning the policy.[12] In support of his

position, Schaffer relied upon Article 2, section 2.3 of the collective bargaining

agreement (CBA) which states that "Nothing contained in this Agreement shall be

construed to diminish the rights granted under the Bylaws of the Board (of Trustees) to

the entities and bodies within the internal structure of CUNY so long as such rights are

not in stated conflict with a stated term of this Agreement."[13] According to Schaffer, the

current policies were promulgated by the Board pursuant to its powers under section

6206 of the New York State Education Law, and there is nothing in the Agreement to

conflict with the Board's right to revise the policy.

Schaffer also relied upon Article 2, sections 2.4 and 2.4(c) of the CBA which

states

The rights, functions and powers of the Board and its officers and

agents, and of the officers of CUNY, under the applicable law of the State

and the Bylaws of the Board, including the Board's right to alter or waive

existing Bylaws or policies in accordance with the procedures specified in

the Bylaws shall remain vested in the Board and in said officers and

agents, subject to the following:

(c) In the event it is proposed that a Bylaw, procedure or policy

respecting a term or condition of employment of all or some of the

employees covered by the Agreement be adopted, amended or rescinded

by resolution of the Board, the PSC shall be given notice and an

opportunity to consult in respect of said action prior to said action being

taken or becoming effective, in the manner specified below:[14]

The CBA goes on to specify the notification requirements to be taken by the Board.

Article 2.4(c)(v) states "The PSC's consent to the Board's action shall not be required

prior to such action being taken or becoming effective, unless the Board action shall be

inconsistent with a stated term of this Agreement."

Article 2 has been in the parties' CBAs in all relevant respects since 1973.[15]

Article 2.2 of the CBA states

The entire Agreement between the parties consists of the terms herein

stated ... All Bylaws, policies and resolutions of the Board, and all

Governance plans and practices of the Colleges and of the departments,

as currently in effect, or as the same may be hereafter adopted,

supplemented or amended, shall be subject to the said stated terms of

The parties reached agreement on a successor CBA on June 5, 2002, the term

of which is August 1, 2000 to October 31, 2002.[16] Prior to executing the most recent

CBA, PSC withdrew its intellectual property demands, as well as its demands

concerning Article 2. The PSC maintained that the CUNY was obligated to negotiate

with it, and the withdrawal of the demands was made "without prejudice" to this

improper practice charge.[17]

By letter dated November 5, 2002, Barbara Bowen, president of the PSC,

requested that CUNY negotiate concerning intellectual property issues.[18] In response,

Vice Chancellor Brenda Malone, by letter to Bowen dated November 8, 2002,

maintained the position that the intellectual property policy was not subject to

negotiations. CUNY thereafter implemented the policy in November 18, 2002.

Bowen testified that the PSC sought to bargain over the intellectual property

policy since "it goes right to the heart of our wages and hours."[19] She further testified

that the policy relates to the control of course material which is put on line, and

compensation which results form the creation of intellectual property. Bowen also noted

the importance of a dispute resolution mechanism to resolve intellectual property

issues.

The significant changes in the policy are that the individual faculty members who

create the work own the copyright on the works which they produced and receive all the

royalties of such works. CUNY does not claim any ownership rights in courses taught

over the internet or by way of other similar technologies, unless agreed otherwise, and

the royalties of patentable works to the creator are increased to 50 % with CUNY

contributing half of its share to the creator's department. The policy sets forth rules

regarding the ownership, management and distribution of income, the ownership of

equity and intellectual property, and conflicts of interest. It also contains provisions

relating to how to obtain an exception to the policy, the resolution of disputes,

trademarks, and the role of the Research Foundation.[20] According to the PSC, the

policy contained the following substantive changes to the existing copyright and patent

policy: it expanded the patent rules to materials such as computer code, expanded

copyright policy to all intellectual property produced by members of the CUNY, rather

than to material developed under grants administered by the Research Foundation, it

gave broader ownership rights to CUNY than previously existed, and it created a new

dispute resolution procedure other than that which is in the CBA.[21]

DISCUSSION

For the reasons set forth below, I find that CUNY violated §209-a.1 (d) of the Act

by refusing to negotiate with PSC in July 2001 concerning the compensation and the

dispute resolution procedure aspects of the intellectual property policy, but find that it

was entitled to unilaterally implement the policy in November 2002.

The charge raises two distinct species of a refusal to bargain. The July 2001

refusal to bargain allegation relates to the undisputed allegation that CUNY refused to

meet and negotiate in good faith with the PSC. Since I find the policy relates to

mandatory subjects of bargaining and CUNY's defenses to be without merit infra, I find

that CUNY refused to bargain in violation of the Act. I do not find, however, that CUNY's

unilateral implementation of the policy in November 2002 was violative of the Act since

it had a contractual right to exercise its prerogatives under the terms of the expired

CBA. The basis of this conclusion is that, since pursuant to §209-a.1 (e) of the Act the

terms of the expired agreement remain in effect, CUNY had a right under Article 2 to

act in accordance with those rights and alter its policies. Initially I will address the scope

of the charge and the mandatory nature of the policy itself.

The PSC's charge, as amended, alleges that the intellectual property policy

contains mandatory subjects of bargaining about which CUNY refused to bargain. With

the exception of compensation, workload, the terms of distance learning, and the

dispute resolution procedure, the latter being raised during the opening argument, it

does not articulate the terms to which it is referring. CUNY agues that the PSC was

vague about what is wished to bargain, and that the charge refers only to

compensation, workload, the terms of distance education, but only at the hearing did

the PSC claim that the dispute resolution procedure was a mandatory subject of

bargaining. I agree with CUNY's contention in this regard, since I do not find that other

items were sufficiently raised so as to apprise CUNY of the nature of the allegations. As

a result, I will limit this discussion to a review of those terms specified above since that

they can be fairly construed to be within the scope of the charge. [22]

CUNY also argues that the intellectual property policy does not affect mandatory

subjects of bargaining. It argues that compensation is not affected because royalties

are fees paid by a third party and do not constitute wages paid by CUNY. It also argues

that the policy it promulgated does not contain any policy relating to workload or

distance learning, and that the PSC did not request bargaining on the dispute resolution

procedure. [23]

I find that the portions of the policy which affect compensation constitute a

mandatory subject of bargaining since they address wages which an employee may

receive due to the creation of a copyrightable work and other intellectual property. The

policy specifies the distribution of income from the creation of intellectual property.

Compensation is clearly a mandatory subject of bargaining,[24] and CUNY violated the

Act by refusing to bargain on demand concerning this subject.

CUNY argues that PSC members receive a salary, and that royalties, which are

fees paid by a third party, do not constitute wages or salaries from CUNY. [25] CUNY's

policy affects an employee's level of compensation by virtue of work which is produced

in the course of employment. The production of such work is a required job duty, and

the amount of fees received by an employee is established by CUNY. That fees are

received from a third party, or that the PSC members are salaried employees, does not

alter the fact that the level of compensation received by the employees is directly

affected by the CUNY policy.

I also find that the dispute resolution procedure constitutes a mandatory subject

of bargaining. This portion of the policy sets forth a procedure to determine the

interpretation of claims and rights of ownership of intellectual property. Grievance

procedures are terms and conditions of employment which constitute mandatory

subjects of bargaining.[26] While CUNY argues that the PSC did not demand bargaining

over this issue, it did demand to bargain over the policy itself. Since, as stated above, I

find that this issue is encompassed in the charge, I find that CUNY violate the Act by

refusing to bargain this issue.

I agree with CUNY that the policy itself does not address workload. There is no

other evidence which demonstrates that the policy affects workload, nor did the PSC in

its brief address this issue. I therefore do not find that the CUNY violated the Act by

failing to bargain concerning this issue and dismiss this aspect of the charge.

PSC, in its letter to Schaffer dated June 22, 2001, demanded bargaining

concerning the terms of distance learning. Additionally, during the course of

negotiations it presented as a proposal that distance learning material[27] shall be the

intellectual property of the member. While this demand may affect compensation, it