DAVID C. TURLEY v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-745

DAVID C. TURLEY

vs.

COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

David C. Turley, a terminal operator employed by the

Massachusetts Port Authority (Massport), filed a charge with the

Department of Labor Relations (department) alleging that the

International Longshoremen's Association, Local 809 (union),

breached its duty of fair representation to him by, among other

things, not pursuing a grievance he filed in May 2018 concerning

the seniority provisions of the collective bargaining agreement

(CBA). A department hearing officer concluded that the union

acted with unlawful motivation in withdrawing the grievance,

but, on the union's administrative appeal, the Commonwealth

Employment Relations Board (board) reversed, concluding that

1 International Longshoremen's Association, Local 809.
Turley failed to meet his burden of proving unlawful motivation.

Turley now appeals from the board's decision, arguing

principally that the board erred by not deferring to the hearing

officer's conclusions. We disagree and thus affirm.

Background. 1. Facts. We set out the essential facts, as

found by the hearing officer and adopted by the board. These

facts are uncontested on appeal.

The union is the exclusive bargaining representative for

Massport employees in several work classifications, including

terminal operator forepersons, terminal operators, pier clerk

forepersons, and pier clerks. Every three months Massport

provides the union with a bid sheet listing employees by

seniority for purposes of bidding on shift hours, primary work

location, and days off. Terminal operator forepersons and

terminal operators bid on one sheet, and pier clerk forepersons

and pier clerks bid on a separate sheet. Turley began working

as a terminal operator in May 2008 and has remained in that

position at all times relevant to this dispute. Philip McGee,

who became union president in 2015, began working as a terminal

operator in June 2007 but moved to the position of pier clerk

about four months later.

In the summer of 2017, a terminal operator announced his

retirement, and Turley learned that McGee was interested in the

2
position. Around the same time, McGee contacted union counsel

Michael Feinberg for advice on whether seniority for shift

bidding was determined by date of hire or by the length of time

worked within a classification. Feinberg replied by letter that

he construed the CBA to provide in these circumstances for

seniority by date of hire. McGee gave copies of Feinberg's

letter to Turley and others, who then met with McGee in the

break room to discuss their concerns. Turley stated that he

disagreed with Feinberg's opinion and that he would file a

grievance if McGee tried to bid ahead of him. McGee

acknowledged Turley's right to file a grievance. In December

2017 McGee moved into the terminal operator group.

In February 2018 Massport circulated a quarterly bid sheet

for terminal operators that listed McGee ahead of Turley.

Turley immediately filed two grievances with union steward Lou

Steriti, alleging violations of the seniority provisions of the

CBA.2 Steriti presented the grievances to his manager Chris

Zuffante, who in turn forwarded them to Brian Day, then

Massport's deputy director of labor relations. Soon thereafter,

Day contacted McGee by telephone and told him that Massport "had

this issue before with another group" and that "seniority as to

As discussed further below, we need not resolve the
2

parties' conflicting interpretations of the seniority provisions
to resolve this appeal.

3
who bids first . . . really isn't of major concern to

[Massport]." Day further stated that, were the union to pursue

the grievances, he would interpret that as the union "agree[ing]

with Mr. Turley's position" and would therefore allow the

grievances as he would for "all other grievances filed by other

[t]erminal [o]perators on the matter of seniority and bidding

order." In other words, "if the [u]nion were to pursue it,

[Day] would agree to [Turley's] grievance[s] and then every

other grievance that came down the pipeline to infinity." Day

thus advised McGee that the union "ha[d] 'to kind of step in and

figure [it] out.'"

McGee met with Turley, Steriti, and three other terminal

operators in the break room and relayed to them what Day had

said. McGee also sent Turley's grievances to Feinberg for a

legal opinion and invited Steriti to meet with Feinberg and

other union officers to discuss the matter. Steriti concluded

after that meeting that none of those who were present -- McGee,

Feinberg, union vice president Dennis LaColla, union treasurer

Kathy Mulcahy, and vice president of the international union

Bernie O'Donnell -- supported Turley's position.

On or about February 12, 2018, McGee asked Steriti,

LaColla, and Mulcahy to attend an executive board meeting to

vote on whether to pursue Turley's grievances. Steriti refused

4
to attend, and McGee, LaColla, and Mulcahy then voted

unanimously to withdraw the grievances. After McGee informed

Turley of the vote, Turley sent a letter to McGee, Zuffante, and

O'Donnell, stating that he was not being fairly represented

because McGee used his position as union president to bid ahead

of half the terminal operators, including Turley, and to call a

meeting to have Turley's grievance dismissed. At some point in

February 2018, Turley hired counsel.

On March 29, 2018, the union held a general membership

meeting at which a topic of discussion was whether to amend the

union bylaws to include language that "there was only one

seniority list regardless of job classification" and "seniority

was determined by date of hire." After the discussion LaColla

made a motion to reaffirm the union's practice of recognizing

seniority by date of hire, which passed by a vote of eleven to

three, and a second motion to add the seniority language to the

bylaws, which passed by a vote of either eleven to three or

twelve to four. Ultimately, however, the union did not adopt

the amended bylaws because it was later determined that the vote

was done incorrectly.

In May 2018 Massport circulated a quarterly bid sheet that

again listed McGee ahead of Turley, prompting Turley to file

another grievance with Steriti. McGee then convened a second

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executive board meeting to vote on whether to pursue this

grievance. After Steriti refused to attend and McGee abstained

from voting, the remaining members, LaColla and Mulcahy, voted

to withdraw the grievance. Later, however, the executive board

decided not to implement the vote so that the matter could be

decided "in the most fair and democratic way possible," i.e.,

through "an emergency meeting so that [the executive board]

could put the issue of Dave Turley's grievance to the entire

[u]nion body."

On or about May 25, 2018, McGee called an emergency

membership meeting to discuss Turley's May 2018 grievance, the

only topic of discussion at the meeting. Turley participated in

the discussion. At the end of the meeting, the membership voted

thirteen to three against pursuing the grievance.

2. Hearing officer's decision. Although Turley presented

four charges to the hearing officer, only one is at issue on

appeal: that the union breached its duty of fair representation

to Turley by withdrawing his May 2018 grievance.3 The hearing

3 The other charges were that the union breached its duty of
fair representation when McGee (1) used his position as union
president to bid ahead of Turley in February 2018; (2) withdrew
Turley's February 2018 grievances; and (3) proposed a seniority
amendment to the union's bylaws. The hearing officer ruled
against Turley on the first charge, finding that McGee bid ahead
of Turley based on his "good faith" belief that he was entitled
to do so under the CBA. Turley does not challenge this finding
on appeal. Nor does he challenge the board's conclusion that

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officer found that the union's handling of the May 2018

grievance was not "arbitrary, perfunctory, or demonstrative of

inexcusable neglect because the [u]nion investigated that

grievance, reviewed the CBA, consulted with Feinberg, considered

Turley's position, convened the [executive board] to discuss the

grievance which voted to present the grievance to the

membership, and conducted an emergency membership meeting in May

of 2018 to vote on whether to withdraw the grievance." The

hearing officer further found that the union "engaged in

informed decision-making . . . consistent with [its] duty of

fair representation when it interpreted the contractual

seniority provisions" (quotation omitted).

Notwithstanding these findings, the hearing officer

concluded that the union's decision to withdraw the grievance

after the emergency membership meeting "was unlawfully motivated

based on McGee's personal interest in the outcome of that

the February 2018 grievances were frivolous because Turley
admitted that, even under his interpretation of the CBA, McGee
would have been entitled to bid ahead of him for a ninety-day
period following his move into the terminal operator group. In
light of this, Turley conceded at oral argument that the union's
withdrawal of the February 2018 grievances does not
independently support a charge of prohibited practice. Turley
also conceded at oral argument that the proposal to amend the
bylaws does not support an independent charge because the
amendment was ultimately not adopted and, as the board found,
there was no evidence that the union relied on the amendment in
deciding not to pursue Turley's May 2018 grievance.

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grievance." In so concluding, the hearing officer cited the

"unprecedented" nature of the March 29, 2018, membership meeting

to amend the bylaws; McGee's participation in that vote; his

convening an executive board meeting "to vote on whether to

present Turley's May 2018 grievance to the membership"; and his

decision to call another "unprecedented" membership meeting on

May 25, 2018, to vote on whether to pursue the grievance. While

acknowledging that McGee recused himself from the vote at the

executive board meeting, the hearing officer found that there

was no evidence that he recused himself from the discussion

prior to that vote and that he openly voted by hand at both the

March 29, 2018 and May 25, 2018 membership meetings. Based on

these factors, the hearing officer concluded that "McGee's

actions and his continued opposition to Turley's positions on

seniority and bidding tainted the memberships' [sic] assessment

into the merits of Turley's May of 2018 grievance and affected

their vote not to pursue that grievance."

3. Board's decision. The board affirmed the hearing

officer's conclusion that the union's handling of the grievance

was not arbitrary, perfunctory, or demonstrative of inexcusable

neglect, but disagreed that Turley met his burden of proving

that the union acted with unlawful motivation. The board

concluded that McGee's self-interest, standing alone, was

8
"insufficient to establish an unlawful motivation in the

handling of the May 2018 grievance, a grievance that was in

essence a purely internal dispute among [the union's] members."

The essential facts, in the board's view, were that the union

presented the matter at a membership meeting, at which "Turley

and his supporters, including Steriti, were present and fully

participated . . . and spoke in support of Turley's grievance";

the membership voted to withdraw the grievance; and "there was

no evidence presented to show that McGee exerted any undue

influence, made any threats, or otherwise attempted to

manipulate the outcome of the vote of the membership."

The board disagreed with the weight that the hearing

officer placed on the "unprecedented" nature of the meetings,

explaining that the nature of the matter was itself

unprecedented and that "the [u]nion's resort to such a process

in the face of a rare dispute among its members [was] not

demonstrative of bad faith" but, in fact, "the opposite." The

board observed that allowing Turley's grievances to move forward

without a vote would have run counter to the opinion rendered by

union counsel. Also, it "would have automatically disadvantaged

not only McGee, but potentially others in the unit as well," as

there were other "employee[s] in the bargaining unit whose date

of hire differed from the date they entered into a specific

9
classification" and "there had been instances in the past where

employees who had moved into the [t]erminal [o]perator group

after working a different classification had bid on the basis of

their date of hire seniority without objection." In sum the

board concluded, based on all the record evidence, that "[w]hile

the [u]nion's processes here could certainly have been improved

upon, the [u]nion's decision to avail itself of its normal

governance processes to resolve the dispute cannot be used to

support a finding of an unlawful motivation, even if it

ultimately resulted in advantaging the [u]nion [p]resident in

shift bidding."

Discussion. 1. Standards of review. As mentioned,

Turley's primary argument on appeal is that the board erred by

not deferring to the hearing officer's decision. In particular,

Turley maintains that, so long as the hearing officer's

conclusions were supported by substantial evidence, i.e., "any

reasonable view of the evidence," the board was required to

"respect" them. This argument, which pervades Turley's brief,

reflects a mistaken understanding of the board's role in the

administrative review process.

Contrary to Turley's suggestion, the standards of review

applicable to proceedings of this sort are well settled. An

administrative appeal board must give "substantial deference" to

10
a "hearing officer's resolution of credibility questions (i.e.,

that a fact is true because a witness testified to it and that

witness is believable)" and "some deference" to the hearing

officer's other "subsidiary findings." Vinal v. Contributory

Retirement Appeal Bd., 13 Mass. App. Ct. 85, 101 (1982). An

appeal board is entitled to reject a hearing officer's findings

when "they are significantly against the weight of the evidence

or . . . suspect in light of 'the consistency and inherent

probability of testimony.'" Id., quoting Universal Camera Corp.

v. National Labor Relations Bd., 340 U.S. 474, 496 (1951). If

it does so, however, the board must lay out in its decision "a

considered articulation of the reasons underlying that

rejection." Vinal, supra at 102. See Morris v. Board of

Registration in Med., 405 Mass. 103, 110-111 (1989) (adopting

Vinal standard); United Water & Sewer Workers, Local 1 v. Labor

Relations Comm'n, 28 Mass. App. Ct. 359, 360 (1990) (applying

Vinal standard in reviewing decision of board's predecessor

agency).

On judicial review the court's role is to determine whether

there is substantial evidence to support the final agency

decision -- here, the board's decision. See Morris, 405 Mass.

at 111; United Water & Sewer Workers, Local 1, 28 Mass. App. Ct.

at 360. There is no support for Turley's contention that the

11
substantial evidence standard governs an agency's review of a

decision of an administrative hearing officer. See Morris,

supra at 110 ("We have never held . . . that the administrative

agency responsible for making the final decision may not revise

or reject the findings of a hearing officer on conflicting

evidence").4 Indeed, the purpose of Vinal's requirement that an

agency articulate its reasons when rejecting a hearing officer's

findings is so that a reviewing court can determine whether

there is substantial evidence to support the agency's decision.

See Vinal, 13 Mass. App. Ct. at 101-102. In this way the Vinal

standard "preserve[s] to the [agency] the right to exercise its

judgment and statutory responsibility." Morris, supra at 111.

2. Substantial evidence. We thus turn to whether there is

evidence that "a reasonable mind might accept as adequate to

support" the board's conclusion that the union did not act with

unlawful motivation in withdrawing Turley's May 2018 grievance.

G. L. c. 30A, § 1 (6). "Unions are permitted 'a wide range of

reasonableness' in representing the often-conflicting interests

of" their members. Graham v. Quincy Food Serv. Employees Ass'n,

407 Mass. 601, 606 (1990), quoting Baker v. Local 2977, State

Council 93, Am. Fed'n of State, County & Mun. Employees, 25

4 All of the cases cited by Turley involve application of
the substantial evidence standard on judicial review of a final
agency decision.

12
Mass. App. Ct. 439, 441 (1988). Consequently, unions have

"considerable discretion not to pursue a grievance, as long as

their actions are 'not improperly motivated, arbitrary,

perfunctory or demonstrative of inexcusable neglect.'" Graham,

supra, quoting Baker, supra. To prove improper motivation, "it

is not enough for the employee to show that his grievance was

'meritorious,' or that the union made a judgmental error'" in

its processing of the grievance (footnotes omitted). Baker,

supra at 441-442. Rather, improper motivation is established

only where there is "'substantial evidence' of bad faith that is

'intentional, severe, and unrelated to legitimate union

objectives.'" Graham, 407 Mass. at 609, quoting Amalgamated

Ass'n of St., Elec. Ry. & Motor Coach Employees of Am. v.

Lockridge, 403 U.S. 274, 301 (1971).

Here, substantial evidence in the record supports the

board's determination that the union's conduct did not rise to

the level of intentional and severe bad faith unrelated to

legitimate union objectives. The critical facts cited by the

board -- that the union presented Turley's May 2018 grievance to

the membership; that Turley and his supporters participated in

the discussion; and that the membership voted thirteen to three

not to pursue the grievance -- are undisputed. These facts

support the board's conclusion that, while the processes the

13
union employed were inelegant, it "did what it could to settle

the grievance[] fairly" by "avail[ing] itself of its normal

governance processes to resolve the dispute."

The board was entitled to reject the hearing officer's

decision to the contrary, and it carefully explained why it did

so. Unlike Morris, 405 Mass. at 112-114, on which Turley

heavily relies, the board did not overturn any of the

credibility findings made by the hearing officer. To the

contrary, the board accepted all of the hearing officer's

subsidiary factual findings -- even those that did not rest on

her resolution of credibility questions -- but drew different

conclusions from those findings, as it was permitted to do.5 See

5Citing a litany of examples, Turley argues that the board
made de novo findings that clearly conflict with the hearing
officer's findings. We have carefully reviewed each of Turley's
assertions and conclude that none show that the board rejected
the hearing officer's subsidiary factual findings, as opposed to
the conclusions she drew from those findings, with one possible
exception. That is the board's finding that McGee told LaColla
about his conversation with Day prior to the vote at the first
executive board meeting, which conflicts with the hearing
officer's observation (contained in the discussion portion of
her decision) that "there is no evidence that [McGee] disclosed
either his conversation with Day or Massport's position
concerning Turley's grievances to the [executive board] prior to
[its] vote on the grievances." But the board's finding is
supported by the evidence, in particular, McGee's affirmative
response during direct examination to the question, "At any
point did you have any conversations with Mr. Lacolla . . .
about the information you learned from Mr. Day?" Moreover, as
the board noted, even assuming that LaColla was unaware of Day's
position, that would not make it any less likely that LaColla's
vote was "on the merits, rather than a bad faith attempt to

14
United Water & Sewer Workers, Local 1, 28 Mass. App. Ct. at 363-

364. For example, while accepting the hearing officer's

findings that the executive board meetings and the general

membership meetings were "unprecedented," the board determined

that to be not demonstrative of bad faith, but a reasonable

response to "a rare dispute" that impacted the entire

membership, especially where Massport had communicated that the

dispute was an internal matter that the union had to resolve.

Likewise, the board accepted the hearing officer's finding that

McGee had a personal interest in the outcome of Turley's

grievance (as did many others in the unit), but explained why

his personal interest did not support a finding of unlawful

motivation on the part of the union. As the board observed,

McGee and a large majority of the membership voted consistently

with union counsel's interpretation of the CBA, and there was no

evidence that McGee "intimidated or coerced" union counsel into

agreeing with him. The board also noted the lack of evidence

that McGee or anyone else was motivated by "unlawful

discrimination, antipathy, or personal dislike toward Turley" or

that McGee "exerted any undue influence, made any threats, or

otherwise attempted to manipulate the outcome of the vote of the

ensure that McGee would successfully outbid Turley regardless of
the contract language."

15
membership." To the extent the hearing officer made a contrary

finding of fact when she stated (in the discussion portion of

her decision) that McGee's actions "tainted" the membership

vote, we see no evidence in the record, and Turley points to

none, to support such a finding.6

Although Turley devotes a large portion of his brief to

arguing that his interpretation of the CBA is correct, again, to

establish unlawful motivation, it not enough for Turley to show

that his grievance was "arguably meritorious." Graham, 407

Mass. at 609. So long as the union's interpretation of the CBA

was not "irrational or indicative of any ulterior or malign

motive," it was within the union's discretion not to pursue the

grievance. Baker, 25 Mass. App. Ct. at 443. See Graham, supra.

As in Baker, supra, we need "not enter upon a detailed inquiry

whether the union's implicit interpretation of the seniority

provision[s] was correct." Suffice it to say that the hearing

officer concluded that the relevant contractual language is

"unclear," a conclusion with which we agree. Moreover, as the

hearing officer further concluded, "McGee bid ahead of Turley

6 The hearing officer's subsidiary factual findings also do
not show that McGee influenced the membership vote. Instead,
the hearing officer simply noted that Turley's grievance was
discussed at the membership meeting, that members were allowed
to ask questions and make comments, and that the membership then
voted thirteen to three not to pursue the grievance.

16
based on his interpretation of the CBA," which, even if

mistaken, was a "good faith error in judgment," and the union

engaged in "informed decision-making" when "interpret[ing] the

contractual seniority provisions." These conclusions, which

Turley does not challenge, defeat any argument that the union's

decision not to pursue the grievance was irrational or unrelated

to legitimate union objectives.

In the end, much like United Water & Sewer Workers, Local

1, 28 Mass. App. Ct. at 364, this is a case where "[a] review of

the record indicates that while the [board's] factual findings

have a different emphasis from those of the hearing officer, its

decision was based on substantial evidence, and it gave the

hearing officer's determination of credibility 'substantial

deference.'" In concluding that the union did not breach its

duty of fair representation to Turley, the board "exercise[d]

its judgment and statutory responsibility." Id., quoting

17
Morris, 405 Mass. at 111. Substantial evidence supports the

board's decision, which is therefore affirmed.7

Decision of Commonwealth
Employment Relations Board
affirmed.

By the Court (Rubin, Blake &
Shin, JJ.8),

Assistant Clerk

Entered: May 28, 2024.

7 The union's request for attorney's fees is denied.

8 The panelists are listed in order of seniority.

18