03/24/2026: Election Ordered for Non-Tenured Professors at USC
APWU illegally refused to provide grievant with settlement information.
American Postal Workers - Union 238 Kansas Kaw Valley Area Local (United States Postal Service), JD-17-26, 14-CB-332603 (ALJ Decision)
ALJ Charles J. Muhl found that APWU Local 238 Kansas Kaw Valley Area Local violated Section 8(b)(1)(A) of the NLRA by refusing to provide a retired postal custodian with information about grievance settlement distributions.
Eva Ayalla, who retired in November 2022 after serving as a union steward, sought information about how the local Union had distributed settlement payments under two “Line H” grievances — contractual claims that the Postal Service had failed to schedule sufficient custodial work hours. After receiving her own payment under the 2021/2022 grievance settlement, Ayalla compared notes with current employees and suspected the distributions were miscalculated. She made repeated requests between June and October 2023 for the total settlement amounts, the number of custodians receiving payments, and each custodian’s individual payment. The Union refused on grounds that the information was private and that disclosure would cause workplace division.
The ALJ first addressed a Section 10(b) timeliness defense, finding that the six-month limitations period began running not when Ayalla received her payment or first raised questions, but when the Union clearly and unequivocally refused to provide the requested information — which occurred on July 6, 2023, inside the limitations window. The ALJ also held, extending doctrine developed under Section 8(a)(5), that each new request and refusal constitutes a separate and distinct violation, meaning later refusals were independently actionable regardless of earlier ones.
On the merits, the ALJ applied the duty of fair representation framework from Union Tank Car Co. and National Nurses Organizing Committee–Texas/National Nurses United, asking whether the Union’s refusal was arbitrary — that is, so far outside a wide range of reasonableness as to be irrational. Noting that Ayalla was a covered grievant for the relevant fiscal years and was also acting on behalf of current employees, the ALJ concluded she retained a sufficient connection to trigger the duty of fair representation even after retirement.
The ALJ found the Union’s privacy and workplace-harmony rationales insufficient to outweigh employees’ interest in verifying fair treatment. Relying on Auto Workers Local 909 (General Motors Corp.–Powertrain), the ALJ held that employees are entitled to an accounting of grievance settlement payments, and that Ayalla’s offer to accept redacted information further undermined the Union’s position. The remedy requires the Union to immediately disclose the requested settlement information to Ayalla.
Significant Cases Cited
Vaca v. Sipes, 386 U.S. 171 (1967): Established that a union breaches its duty of fair representation by engaging in arbitrary, discriminatory, or bad faith conduct toward a bargaining unit employee.
Air Line Pilots Association v. O’Neill, 499 U.S. 65 (1991): Held that the duty of fair representation extends to all union activity in its capacity as bargaining representative, and that a union’s conduct is arbitrary only if it falls outside a wide range of reasonableness.
National Nurses Organizing Committee–Texas/National Nurses United (Bay Area Healthcare Group), 371 NLRB No. 132 (2022): Articulated the standard for when a union’s duty of fair representation includes an obligation to provide requested information, and the balancing test between employee interest and union countervailing interest.
Auto Workers Local 909 (General Motors Corp.–Powertrain), 325 NLRB 859 (1998): Held that a union violated Section 8(b)(1)(A) by refusing to provide employee grievants with an accounting of grievance settlement payments.
Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971): Held that retired workers are not statutory “employees” within the meaning of Section 2(3) of the NLRA, raising the threshold question of whether a union owes a duty of fair representation to retirees.
University of Southern California, 31-RC-356388 (Regional Election Decision)
The NLRB’s Region 31 Regional Director issued a Decision and Direction of Election on March 20, 2026, finding that approximately 2,750 non-tenure track faculty at the University of Southern California (USC) constitute an appropriate bargaining unit under the NLRA and directing a secret ballot election.
Managerial Status
USC argued its shared governance structure — through the Academic Senate, university-wide committees, and school-level faculty councils — rendered the petitioned-for research, teaching, practitioner, clinical, and continuing appointment track faculty (collectively “RTPC Faculty”) managerial employees under NLRB v. Yeshiva University and the Pacific Lutheran University framework. The Regional Director rejected this argument across all five Pacific Lutheran decision-making areas. On academic programs, the curriculum committee (UCOC) applied only ministerial review for technical compliance rather than substantive judgment; on enrollment management, the faculty finance committee (COFE) was consulted on two questions but administered no independent review and simply aligned with administration’s position; on finances, COFE and the benefits advisory committee (EBAC) were overridden when they disagreed with administration; on academic policies, the CAPP committee’s involvement was too vague and limited to establish effective control; and on personnel policies, committee recommendations — including those of the professional responsibility committee (COPR) — were routinely subject to multi-level administrative review and override. The Regional Director applied the Elon University modification to Pacific Lutheran, which eliminated the requirement that a disputed subgroup constitute a majority of a committee, but concluded that the faculty bodies did not exercise effective control in the first instance.
Supervisory Status
USC argued RTPC faculty are statutory supervisors under Section 2(11) of the NLRA because of their roles overseeing teaching assistants, research assistants, and students in clinical settings. The Regional Director disagreed, finding that TA assignments, discipline, and removal were controlled by administrators rather than faculty, and that faculty involvement with students in clinical settings amounted to instruction rather than supervision. Relying on Fordham University, the Regional Director further rejected USC’s theory that collective participation in faculty governance committees confers individual supervisory status.
Community of Interest
The Regional Director found the petitioned-for unit appropriate under the American Steel Construction, Inc. community of interest standard. Factors supporting the unit included RTPC faculty’s shared employment category distinct from tenured faculty, similar skills and training, overlapping job functions centered on teaching and mentoring, common terms and conditions including identical benefit eligibility and a uniform faculty handbook, and frequent contact through university-wide committees. Two factors — common supervision and interchange — did not support the unit, but were outweighed by the others.
USC also raised constitutional challenges to the Board’s structure and election rules, which the Regional Director declined to address substantively, noting the Board recently rejected identical arguments in Portillos Hot Dogs, LLC. A manual election was directed for the week of April 13 or April 20, 2026, at two polling locations.
Significant Cases Cited
NLRB v. Yeshiva University, 444 U.S. 672 (1980): Supreme Court established the standard for evaluating when university faculty are managerial employees excluded from NLRA coverage.
Pacific Lutheran University, 361 NLRB 1404 (2014): Board set forth the five-factor framework for assessing faculty managerial status, requiring actual control or effective recommendation in academic programs, enrollment, finances, academic policies, and personnel policies.
Elon University, 370 NLRB No. 91 (2021): Board modified Pacific Lutheran by eliminating the requirement that a disputed faculty subgroup constitute a majority of a governance committee for the managerial finding to extend to it.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Board defined the independent judgment requirement for supervisory status under Section 2(11), holding that a supervisor must act free of others’ control and form opinions by discerning and comparing data.
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Board reaffirmed the community of interest standard for unit appropriateness, requiring only that a petitioned-for unit be appropriate, not the most appropriate unit.