Ray Angelini, Inc.

National Labor Relations Board - Board Decisions

Jul 5, 2001

334 N.L.R.B. 425 (N.L.R.B. 2001)

RAY ANGELINI, INC. 425
Ray Angelini, Inc. and International Brotherhood of
Electrical Workers, Local Union No. 98. Case 4–
CA–24904
July 5, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On September 26, 2000, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Ray Angelini, Inc.,
Sewell,New Jersey, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Richard Wainstein, Esq., for the General Counsel.
Marc Furman and Thomas C. Zipfel, Esqs., of Elkins Park,
Pennsylvania, for the Respondent.
Richard C. McNeill Jr., Esq., of Philadelphia, Pennsylvania, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me on February 22, 2000, in Philadel-
phia, Pennsylvania, pursuant to a charge against Respondent
Ray Angelini, Inc. (RAI) filed by International Brotherhood of
Electrical Workers, Local Union No. 98 (the Union or Local
98) on May 7, 1996, and a complaint issued on February 20,
1998, and amended on February 8, 2000. The complaint in its
final form alleges that RAI violated Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act) by filing, maintaining, and
prosecuting before the United States district court an unmerito-
rious lawsuit against Local 98 in retaliation for Local 98’s ex-
ercise of rights guaranteed in Section 7 of the Act. See Ray
Angelini, Inc. v. City of Philadelphia, 984 F.Supp. 873 (E.D.Pa.
1997).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In agreeing with the judge’s conclusion that the Respondent vio-
lated Sec. 8(a)(1) of the Act by filing and maintaining its unmeritorious
lawsuit against Local 98 in retaliation for the exercise of Sec. 7 rights,
we do not adopt the judge’s reliance on the language of the Respon-
dent’s filings to the district court. See sec. II,D, “Analysis and Conclu-
sions,” par. 3, last sentence and fn. 17 of her decision.
We further note that the following decisions, relied on by the judge,
have subsequently been enforced: Petrochem Insulation, Inc., 330
NLRB 47 (1999), enfd. 240 F.3d 26 (D.C. Cir. 2001); BE & K Con-
struction Co., 329 NLRB 717 (1999), enfd. 246 F.3d 619 (6th Cir.
2001).
On the basis of the entire record, including the demeanor of
the one witness who testified before me, and after due consid-
eration of the briefs filed by counsel for the General Counsel
(the General Counsel) and RAI, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LOCAL 98’S STATUS
RAI is a New Jersey corporation with a facility in Sewell,
New Jersey. At all material times, RAI has been engaged as an
electrical and general contractor in the construction industry.
During the year preceding the issuance of the complaint, RAI,
in conducting its New Jersey business operations, performed
services valued in excess of $50,000 outside New Jersey. I find
that, as RAI admits, it is engaged in commerce within the
meaning of the Act, and that assertion of jurisdiction over its
operations will effectuate the policies of the Act.
The Union is a labor organization within the meaning of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Effect of the District Court’s Findings of Fact
RAI counsel stated at the hearing before me that RAI was
bound by the district court’s findings of fact to the extent that
they were necessary to the determination which was actually
made by the district court. The record before me includes, as
an exhibit, General Counsel’s Exhibit 4, Respondent’s pro-
posed findings of fact and conclusions of law filed with the
district court in that lawsuit, which was eventually dismissed
with prejudice. Some of these proposed findings of fact were
not included in the district court’s opinion, and (as to some
extent discussed infra) some of them were rejected in terms
and/or are inconsistent with the district court’s findings. The
parties stipulated that General Counsel’s Exhibit 4 is what it
purports to be and that it was filed in the district court. The
document was received into evidence without objection, but
union counsel stated, “[W]e stipulate that [this is the document
that was] presented and . . . filed, but not the veracity or infor-
mation contained inside.” After receiving RAI’s posthearing
brief to me, I wrote a letter to RAI’s counsel asking why they
repeatedly cited this exhibit in seeming effort to support certain
factual allegations in their brief. Counsel’s reply letter states,
in part:

With regard to your request for clarification of why [RAI]
made reference to General Counsel Exhibit 4 in its brief,
[RAI] made reference to the document to demonstrate Ange-
lini’s basis for bringing the lawsuit at the district court level.
334 NLRB No. 61
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 426
While some of the references were made by way of back-
ground—all of which was uncontested by counsel for the
General Counsel, most of the references were made to support
[RAI’s] claim that an unlawful conspiracy occurred between
the City of Philadelphia and the Union. The factual aver-
ments pulled out of G.C. Exh. 4 set forth the conspiracy, and
evidence supporting the basis of a conspiracy, from [RAI’s]
view. It further demonstrates that two years before the current
claim arose, [RAI] was claiming that the basis for the district
court lawsuit was an unlawful conspiracy and that [RAI] was
providing evidence to demonstrate that theory.1 The General
Counsel and the Union are alleging that the basis for the dis-
trict court action was retaliatory in nature. The evidence
pulled out of G.C. Exh. 4, demonstrates that from the very
beginning the lawsuit was based on the Union’s unlawful ac-
tivity that is not protected by Section 7 of the Act. Finally, as
explained by counsel at the hearing, [RAI] is not attempting to
relitigate the underlying case. Instead, [RAI] makes reference
to the exhibit in order to demonstrate the motive for filing the
underlying lawsuit, that motive is a critical part of the analysis
under [Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731
(1983)].
G.C. Exh. 4 was, by its very identification, placed into
evidence by counsel for the General Counsel. There was
no issue taken with the contents of the said exhibit and
there is no testimony in the record that would dispute the
positions taken by [RAI] therein.

In making my findings of fact, I have considered General
Counsel’s Exhibit 4 as evidence of what RAI was contending in
the district court lawsuit, and of the reasons advanced to the
district court by RAI for initiating, maintaining, and prosecut-
ing that lawsuit. I do not regard General Counsel’s Exhibit 4 as
probative of any of the factual assertions made therein. Fur-
thermore, I do not regard the inclusion of any factual assertion
in General Counsel’s Exhibit 4, standing alone, as showing
either that the district court record includes evidence which is
not in the record before me and would tend to show the truth of
that assertion, or that when that assertion was made, RAI hon-
estly believed it to be true.
Respondent’s posthearing brief also relies on General Coun-
sel’s Exhibit 2, which is RAI’s complaint in the district court
lawsuit with an attachment consisting of an affidavit by Attor-
ney Roy S. Cohen, who from time to time has acted as RAI’s
counsel, and who testified for RAI in the district court lawsuit
but did not act as RAI’s attorney in that lawsuit.2 This exhibit
was offered and received into evidence with the stipulation that
it is what it purports to be, but with the understanding that the

1 The charge in the case at bar was filed about 15 months before RAI
filed GC Exh. 4 with the district court, and about 2 weeks after RAI had
initiated the district court lawsuit and begun to put in evidence in at-
tempted support of its request to the district court for a preliminary
injunction.
2 At certain points in RAI’s brief to me, GC Exh. 2 is referred to as
GC Exh. 1. Also, the citations in Respondent’s brief, to certain para-
graph numbers in GC Exh. 2, refer to Attorney Roy Cohen’s attached
affidavit. By letter to me dated May 19, 2000, Attorney Thomas C.
Zipfel corrected these errors.
stipulation did not extend to the veracity or information con-
tained therein except to the extent that such averments would
constitute admissions by RAI. Upon my inquiry (by letter
dated May 9, 2000) as to why RAI’s brief referred to General
Counsel’s Exhibit 2, a letter to me from RAI counsel dated
May 19, 2000, states in part as follows:

[T]he references are used when describing the conversation
[RAI’s] Counsel Roy Cohen had with Philadelphia Commis-
sioner Louis Applebaum. The details of that conversation
were set forth in Mr. Cohen’s affidavit which was attached to
the federal Complaint as an exhibit. The federal Complaint
was put into the record as General Counsel’s Exhibit 2. The
reason for relying on the information contained in the federal
Complaint and the affidavit is that both documents set forth
the factual basis upon which the federal lawsuit was based. It
is respectfully submitted that Your Honor must look to the
motivating factors behind the filing of the federal lawsuit.
These documents set forth the basis for that motivation – an
unlawful conspiracy between Local 98 and the City of Phila-
delphia which was revealed to Roy Cohen. [RAI president]
Ray Angelini testified without contradiction that he relied on
the facts set forth in the affidavit to file the lawsuit.3

In making my findings of fact, I have considered Attorney
Cohen’s affidavit in light of Angelini’s testimony as to his mo-
tive for initiating and maintaining the district court lawsuit. I
have also considered the remaining portions of General Coun-
sel’s Exhibit 2 as evidence of what RAI was contending in the
district court and of RAI’s motive in initiating and maintaining
that lawsuit. However, except to the extent that the averments
in the latter-described portions of General Counsel’s Exhibit 2
were admitted in Local 98’s answer in the district court lawsuit,
I do not regard such averments as probative of the truth of the
factual assertions therein.
RAI’s frequent use of its proposed findings of fact, and of
the averments in its complaint, before the district court as the
sole cited basis for factual assertions in its brief to me has
caused me a good deal of difficulty in ascertaining which such
factual allegations are supported by probative evidence in the
record before me.4
B. Background
RAI operates as a general contractor and an electrical con-
tractor in Pennsylvania, New Jersey, and Delaware (984
F.Supp. at 874–875).5 For about 25 years, RAI has performed
3 Cf. NLRB v. Walton Mfg. Co., 369 U.S. 404, 407–408 (1962).
4 Moreover, citing its district court proposed findings of fact, RAI
asserts (br. p. 7) that RAI was found disqualified for the Philadelphia
Airport job involved in the instant case “As a result of unlawful politi-
cal pressure and a conspiracy between Local 98 and the City” of Phila-
delphia. The district court found that RAI had failed to prove that the
decision to disqualify RAI on that job “was the result of improper po-
litical influence or agreement between the City and Local 98.” 984
F.Supp. at 882, par. 6. See also RAI’s brief to me p. 13 (“the facts
above demonstrate an unlawful conspiracy”); p. 16 (RAI was disquali-
fied “as a result of a conspiracy between the federal [sic] defendants to
deny [RAI’s bid] based upon its open shop status”).
5 Citations to the district court’s opinion do not necessarily mean that
all of my findings in that sentence were also made by the district court.
RAY ANGELINI, INC. 427
work, mostly as an electrical contractor, in Philadelphia, Penn-
sylvania (the city), on projects ranging in value from $200,000
to $800,000 (984 F.Supp. at 875). Much of RAI’s work is on
public sector projects where State prevailing wage statutes
apply. (984 F.Supp. at 874). RAI usually operates on an open-
shop basis, and has not been under contract with Local 98 for
about 20 years. Pursuant to a petition filed by IBEW Local 439
and docketed as Case 4–RC–16775, the Board conducted an
election on June 21, 1988, in a voting group which consisted of
all of RAI’s full-time and regular part-time electricians, electri-
cian mechanics, apprentice electricians, trainee electricians, and
helpers; but excluding (inter alia) carpenters and carpenter
helpers. The tally of ballots showed that of about 31 eligible
voters, 10 voted for Local 439, 20 voted against Local 439, and
1 ballot was challenged. On September 7, 1988, the Acting
Regional Director issued a supplemental decision overruling
Local 439’s objections to the election and certifying the elec-
tion results.6 In seeking construction contracts, RAI has bid
against both union and nonunion contractors. RAI President
Raymond G. Angelini’s father has been a union president and a
secretary-treasurer or a business agent of the Metal Trades
Council; President Angelini’s brother-in-law has also been a
union official.
In order to bid on a project for the City, a contractor must be
“prequalified” to bid that particular project. In order to obtain
prequalification status, a contractor must submit evidence of
financial status and of experience relevant to performance of
the job. RAI has been considered a prequalified bidder in the
City on dozens of occasions.
In late 1995, the City solicited bids for electrical work for a
project at the Philadelphia International Airport (the Philadel-
phia Airport job or the Bid 6551) (984 F.Supp. at 875). After
having obtained prequalification status, RAI submitted a bid of
$6,778,000 (984 F.Supp. at 875). This was the lowest bid for
the job; the next lowest bidder was a union contractor,
Lombardo & Lipe, which submitted a bid of $7,372,000 (984
F.Supp. at 875). About December 20, 1995, RAI was given
notice that it was the low bidder.
Thereafter, Angelini heard “rumors” from “tradespeople who
were visiting” RAI, from “salesmen who were visiting” RAI,
and “from a prospective management employee that [Angelini]
was interviewing” that there was a possibility that Local 98 and
Lombardo & Lipe were trying to have RAI disqualified. In
early January 1996, John Dougherty, who at all material times
has been Local 98’s business agent (an elective office), advised
Gerald Murphy, who at all material times has been the City’s
deputy mayor for labor, that in the performance of certain jobs
for the State of New Jersey RAI had been found to have vio-
lated New Jersey’s regulations requiring payment of prevailing
wages (984 F.Supp. at 876, par. 19). Following inquiries by
Murphy, the New Jersey Department of Labor advised him, by

On occasion, some of my findings in such a sentence are also based on
probative evidence in the record made before me.
6 My findings as to Case 4–RC–46775 are based on correspondence
from the General Counsel and counsel for RAI. Counsel for RAI
therein describes the votes against Local 439 as “votes for the Em-
ployer.”
letter dated January 25, 1996, that RAI had violated such New
Jersey regulations on three occasions during the past 5 years
(984 F.Supp. at 876, par. 26). On February 6, 1996, the City’s
procurement department advised RAI that it was being dis-
qualified from receiving an award of a contract on the Philadel-
phia Airport job “based upon information, including wage and
hour violations, which the Procurement Department received
subsequent to the opening of bids.” (984 F.Supp. at 877, par.
40.) This was the first occasion on which RAI had been found
disqualified from bidding on a city project.
At this point, RAI requested a disqualification hearing. At
that hearing, which was held on February 13, 1996, and was
attended (as spectators, so far as the record shows) by Dough-
erty and several other Local 98 members and/or officials, RAI
was advised that three specified violations of New Jersey pre-
vailing-wage regulations had been the basis for RAI’s disquali-
fication (984 F.Supp. at 878–879, par. 47). One of these viola-
tions, for which RAI had paid about $800 in backpay and pen-
alties, was caused by an RAI payroll clerk’s 1991 clerical error
in failing to make a timely notation of an employee’s change in
status. The second of these, for which RAI had paid about
$315 in backpay and penalties, was caused by a payroll clerk’s
1994 error in calling for 1 hour’s Saturday overtime pay at time
and a half instead of double time. The third of these, for which
RAI paid about $19,000 in back wages, was caused by an RAI
construction employee’s 1993 failure to advise RAI, until after
he had resigned from RAI’s employ, that he had dropped out of
a school which he had been required to attend as an apprentice
and, therefore, under New Jersey regulations was entitled to
receive higher pay than if he had continued to attend school.
During the disqualification hearing, there was also a good deal
of discussion regarding RAI’s activities on the current Belmont
Pumping Station project in Philadelphia, on which no violations
had previously been alleged; however, the hearing panel dis-
carded this evidence (984 F.Supp. at 879, pars. 72–73). On the
day after the disqualification hearing, Angelini was notified that
the hearing panel (which consisted of City Director of Pro-
curement Applebaum and two other city officials) had upheld
the disqualification. Angelini credibly testified that by that
time he believed that one of the reasons RAI had failed to ob-
tain the Philadelphia Airport job was that Local 98 had pro-
vided information to the city to have RAI kicked off the pro-
ject.
On February 16, 1996, 2 days after Angelini learned that
RAI’s disqualification had been upheld on appeal, RAI filed
against the city and Lombardo & Lipe a lawsuit in State court
(984 F.Supp. at 875). A temporary restraining order requested
by RAI, which order (inferentially) prohibited the city and
Lombardo & Lipe from entering into a contract for the electri-
cal portion of the airport job, was issued by the State court
judge on February 22, 1996. On March 1, 1996, the State court
judge determined that he would deny RAI’s request for a pre-
liminary injunction, which (inferentially) would have included
the same prohibitions as the temporary restraining order, on the
ground that RAI could get a remedy through the court system
for any monies RAI was due (984 F.Supp. at 875). The com-
plaint in the case before me does not allege that RAI violated
the Act by filing or prosecuting this State court action, in which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 428
Local 98 was not a defendant. About March 4, 1996, the city
awarded the electrical portion of the Philadelphia Airport job to
Lombardo & Lipe.
Before this award was made, Deputy Mayor Murphy was
asked to check into whether Lombardo & Lipe had any prevail-
ing wage violations. Murphy’s investigation revealed that
Lombardo & Lipe had a single prevailing-wage violation dating
to 1989, 7 years earlier. He did not investigate further into
Lombardo & Lipe, since no other information about this firm
was brought to his attention (984 F.Supp. at 879, pars. 87 and
88). After learning that the disqualification determination had
been upheld, RAI hired an investigator to determine whether
other airport contracts had been awarded to contractors who
had prevailing wage violations. On the basis of these investiga-
tors’ reports to RAI, RAI reported to the city that at least some
of these other bidders had engaged in violations much more
serious than the violations which had formed the at least osten-
sible basis for RAI’s disqualification. So far as the record
shows, no action was taken with respect to these other contrac-
tors.
In April 1996, RAI discontinued its State court action (984
F.Supp. at 875). On April 23, 1996, RAI filed in the United
States district court for Eastern Pennsylvania the lawsuit whose
initiation, maintenance, and prosecution against Local 98 the
complaint before me alleges to be an unfair labor practice.
On April 9, 1996, RAI submitted prequalification statements
for two bids (on Nos. 6582 and 6583) covering airport work
other than the work previously referred to here as the Philadel-
phia Airport job. Following contacts by State officials with
deputy mayor Murphy about possible prevailing-wage viola-
tions which would disqualify RAI on these bids, the city noti-
fied RAI by letter dated April 25, 1996, that RAI was disquali-
fied from submitting bids on Nos. 6582 and 6583. On appeal
by RAI, its disqualification was in effect reversed by a panel
which included Applebaum but not the other city officials who
had sustained RAI’s February 1996 disqualification on the
Philadelphia Airport job. RAI did not submit bids on Nos.
6582 and 6583. However, after RAI’s disqualification for the
Philadelphia Airport job and at least until after the April 8,
1997, end of the trial before the district court, that February
1996 disqualification did not cause RAI to be disqualified from
receiving an award of a public or Government contract (984
F.Supp. at 879, pars. 81; 880–881, pars. 99–117).

C. The Proceedings before the United States District Court
1. The parties to the proceeding
RAI’s complaint before the district court named as defen-
dants Local 98 and the three-panel members who had upheld
RAI’s disqualification from the Philadelphia airport job—
namely, Applebaum; Frances Egan, then the city’s deputy man-
aging director; and James Coleman, the city’s deputy managing
director. Also named as defendants were the city itself; Edward
G. Rendell (the city mayor); David L. Cohen (city chief of
staff, not to be confused with RAI Attorney Roy S. Cohen);
Gerald Murphy (the city’s deputy mayor for labor, whose du-
ties included overseeing a city agency which monitors the pay-
ment of prevailing wages on city public work projects, see 984
F.Supp. at 876 par. 15); Marla D. Neeson (the city’s deputy
procurement commissioner); and Lombardo & Lipe. The com-
plaint alleged that RAI had a cause of action against the defen-
dants “pursuant to 42 U.S.C. § 1983, as a consequence of de-
fendants’ deprivation of [RAI’s] rights, privileges and immuni-
ties secured by the Constitution and laws of the United States.”
2. The Roy Cohen affidavit
Attached to RAI’s complaint was an affidavit by Attorney
Roy S. Cohen (not to be confused with Chief of Staff David L.
Cohen, named as a defendant in RAI’s lawsuit), who had been
RAI’s attorney for several years and had represented it
throughout the “disqualification issue.” Attorney Cohen’s affi-
davit, dated April 17, 1996, stated that on Friday, March 15,
1996, he happened to encounter Applebaum, who is the city’s
director of procurement and who had been a member of the
three-member panel which had sustained the disqualification
finding with respect to RAI on the Philadelphia Airport project.
The affidavit went on to state, in part:

52. Applebaum approached me and said “hello.”
53. Applebaum then initiated a conversation about
[RAI’s] disqualification by asking me whether [RAI] was
serious about going forward with a press conference, as
had been conveyed to the City, revealing the fact that the
City was squandering $600,000.00 by awarding the con-
tract to a union rather than a non-union contractor without
justification.
54. I told Applebaum that my client was significantly
injured by this decision and that we would have to take
whatever steps were necessary.
55. Applebaum argued that it was not true that my cli-
ent was seriously harmed.
56. I then explained to Applebaum that my client
would have to report the finding of non-responsibility al-
most every time it bid public work for any municipality or
agency.
57. Applebaum responded that that could be quickly
dealt with.
58. Applebaum warned me that “you can’t [expletive
deleted] with Eddie or David,” referring to Mayor Edward
Rendell (“Rendell”) and Chief of Staff David Cohen
(“Cohen”).
59. Applebaum advised that both Rendell and Cohen
had been involved in making the decision that the contract
be awarded to Lombardo & Lipe rather than [RAI].
60. Applebaum further advised that the decision had
been made as a result of Rendell’s and Cohen’s political
obligations to Dougherty, business agent for Local 98 of
the International Brotherhood of Electrical Workers Un-
ion.
61. Specifically, Applebaum stated that Dougherty
had a 5,000 man convention coming to the City and that it
would not look good if a non-union contractor was work-
ing on the project at the airport.
62. I asked Applebaum whether it bothered him as a
taxpayer that the City was willing to pay an additional
$600,000 for the work to be performed by Lombardo &
Lipe.
RAY ANGELINI, INC. 429
63. Applebaum admitted that it was “burning a hole in
his stomach” and that he suggested as recently as Thurs-
day, March 14, 1996 that all of the bids be thrown out and
that the project be rebid.
64. Applebaum confided that he had been told that
there was not sufficient time in order to do this.
65. I then told Applebaum that I was frustrated by the
process and that I thought this matter could have been han-
dled more professionally.
66. Applebaum then pointed out that it is rare for offi-
cials of the City to get involved in deciding which contrac-
tor should be awarded projects.
67. Applebaum then further stated that it was only
when Gerald Murphy, Deputy Mayor for Labor, receives a
lot of pressure from a particular labor union, that he uses
his power to declare a contractor non-responsible to obtain
the desired result.
68. Applebaum assured me that this only happened on
rare occasions.
69. I observed that that was a sad state of affairs.

At the hearing before me, Angelini testified that Attorney
Cohen told him about this conversation with Applebaum. An-
gelini testified that paragraphs 58–61 of Cohen’s affidavit were
“consistent with” what he told Angelini about Cohen’s conver-
sation with Applebaum. Angelini further testified that as to this
Applebaum-Cohen conversation, Attorney Roy Cohen told him
that Rendell and Chief of Staff David Cohen were directly in-
volved in making the decision to kick RAI off the project, that
the decision to kick RAI off the job was as a result of Rendell’s
and David Cohen’s political obligations to Local 98 Business
Representative John Dougherty, and that a 5000-man conven-
tion was coming to Philadelphia some time later in the year.
Angelini testified that he “absolutely” believed Attorney
Cohen’s account of his conversation with Applebaum, and that
Angelini “absolutely” relied on what Attorney Cohen had said.
Angelini went on to testify that on the basis of what attorney
Cohen told him, and Cohen’s affidavit, Angelini believed that
RAI had been “kicked off the job because of a conspiracy be-
tween Local 98 and the City; and that of a political obligation.”
Angelini went on to testify that he believed the wage and hour
violations that had been presented to the City of Philadelphia
were “just a front.” Angelini testified that if he had never heard
about this conversation between Applebaum and Attorney
Cohen, he would never have joined Local 98 as a party, “Be-
cause they did something that was lawful. I mean just bringing
up past violations is not against the law. It’s something that’s
done every day.”
3. RAI’s April 1996 district court complaint and Local 98’s
June 1996 answer to that complaint
On an undisclosed date after Roy Cohen gave Angelini
Cohen’s version of his March 15, 1996 conversation with Ap-
plebaum and before April 23, 1996, RAI retained a new attor-
ney, Louis T. Sinatra, to represent it in the contemplated law-
suit in Federal court. RAI changed counsel because of the ex-
pectation that Roy Cohen would be a witness in that proceeding
(as he in fact was). RAI’s district court complaint (dated April
23, 1996) alleged in part (emphasis in original):

37. As more particularly noted infra, the City’s dis-
qualification of [RAI] occurred at the initiation and insti-
gation of Local 98 and as a consequence of the collabora-
tion between the individual Defendants, the City and Local
98 to attempt to preclude open shop contractors from per-
forming work at the Airport and to divest them of their bid
in favor of union contractors such as Lombardo & Lipe.

. . . .

48. Upon information and belief, [RAI] avers that the
City entered into an understanding with Local 98 several
months ago w the City assured Local 98 that it will at-
tempt to preclude open shop electrical contractors from
working at the Airport.
49. This understanding was a quid pro quo for the
electrical workers bringing a national electrical workers’
convention to the City of Philadelphia in the summer of
1996.
50. Specifically, John Dougherty, Business Agent of
Local 98, advised the City of his desire to preclude open
shop electrical contractors from working at the Airport and
specifically on the Project at issue and the City and its of-
ficials, individual Defendants herein, agreed to assist Lo-
cal 98 in that endeavor.
51. Upon information and belief, it is averred that the
National Electrical Workers convention will be held in
Philadelphia in the summer of 1996.
52. To further its goal of having only union workers at
the Airport, the City of Philadelphia has implemented a
new “right to work” standard for future Airport projects
including the Runway Development project (“Runway
Project”), which requires all contractors who work on the
Runway Project to execute Project Labor Agreements with
the appropriate labor organizations. . . .
53. The Uniform City of Philadelphia Project Labor
Agreement (“Agreement”) governing the Runway Project
was dated January 26, 1996 and references an Executive
Order issued by Rendell known as Executive Order No. 5-
95 which specifically identifies a goal of having major
construction projects in Philadelphia performed consistent
with the Project Labor Agreements.
54. [The Philadelphia Airport bid] did not have as a
requirement the execution of a Project Labor Agreement.
55. As more particularly described hereinafter, indi-
vidual Defendants all collaborated in ignoring Plaintiff’s
rights and wrongfully stigmatizing Plaintiff with a “non-
responsible bidder” classification as a consequence of im-
proper political and economic considerations.7
. . . .
67. At the [disqualification] hearing, [deputy mayor
for labor] Murphy acknowledged that the information re-
lating to wage and hour violations which prompted

7 RAI President Angelini testified that the rights referred to in this
paragraph were “The right for anyone, open shop or closed shop . . . to
work—do work in the United States—any work, as a responsible bid-
der.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 430
[RAI’s] disqualification from the [Philadelphia Airport]
Project was provided to the City by Local 98.

RAI’s complaint went on to allege that after Lombardo &
Lipe had been awarded the Philadelphia Airport electrical job,
RAI had provided the city with “incontrovertible proof” that
Lombardo & Lipe, as well as several other union firms which
had been awarded other airport jobs, had been “cited with gov-
ernmental violations more serious and pervasive than the de
minimis violation against [RAI] which formed the pretext for
the disqualification” of RAI. The complaint alleged that these
firms had nonetheless retained their airport contracts, and:

117. . . . upon information and belief that Rendell,
David Cohen, Applebaum, Murphy and Neeson all were
involved in the decision to ignore the obvious disparate
treatment by the City when presented with the information
about violations by Lombardo & Lipe [and other union
firms with Philadelphia Airport contracts] in order to pre-
serve its Agreement with Local 98 to keep the Airport un-
ion only.
118. The decision by the City and the individual De-
fendants to affirm [RAI’s] disqualification as contractor on
the Project was made as part of the collaboration between
Local 98 and the City to foster and promote union activi-
ties to the detriment of open shop contractors such as
[RAI]; individual Defendants have, therefore, acted for
purely political and irrational reasons, unrelated to legiti-
mate governmental objectives, in connection with [RAI’s]
disqualification from the Project and the wrongful classifi-
cation of [RAI] as “non-responsible.”

. . . .

123. . . . the individual Defendants recklessly disre-
garded the true facts and circumstances relating to [RAI’s]
disqualification and said Defendants participated in the
decision to disqualify [RAI] and classify [RAI] as “non-
responsible” for political purposes and economic motives,
and in particular to satisfy a “political debt” to Local 98.
124. The actions of the individual Defendants set forth
herein . . . were motivated by bias, bad faith and/or irra-
tional objectives, unrelated to legitimate governmental ob-
jectives; the individual Defendants were motivated to as-
sist Local 98 as a consequence of said union’s commit-
ment to bring the Electrical Contractors’ Convention to
Philadelphia and by other political factors.

. . . .

134. Said individual Defendants, therefore, conspired
to violate [RAI’s] civil rights in order to foster and pro-
mote their relationship with Local 98; the said conspiracy
is more particularly described in the Affidavit of Roy
Cohen attached to Plaintiff’s Motion for Injunctive Relief
and the averments in said Affidavit are incorporated by
reference.
COUNT III—SECTION 1983 VIOLATION
Angelini v. Local 98 of the Electrical Workers’ Union
148. [RAI] incorporates herein by reference, and
makes a part hereof, the averments of paragraphs 1
through 147 above.
149. As described above, Local 98 conspired with the
other Defendants to violate [RAI’s] rights.
150. Local 98 in acting in a conspiracy and in concert
with the other Defendants has acted under color of federal
law t making it liable under 42 U.S.C. § 1983.
151. Local 98 by participating in the conspiracy de-
scribed above deprived [RAI] of its rights to substantive
due process and liberty as guaranteed by the Fourteenth
Amendment of the Constitution of the United States by
encouraging disparate treatment of [RAI] because it is an
open shop contractor.
152. As a direct result of the wrongful acts and omis-
sions of Local 98 and the other Defendants, [RAI] has sus-
tained damages and will continue to sustain damages in
the future including but not limited to lost profits and earn-
ings in connection with the project and consequential
damages resulting from the injury to Angelini’s reputation
as a responsible contractor.
153. [RAI] is further entitled to recover costs, ex-
penses, and attorneys’ fees from Local 98 pursuant to 42
U.S.C. § 1988.
154. Local 98 acted with reckless and callous disre-
gard and indifference to the rights and liberty interest of
[RAI]; accordingly, Angelini is entitled to punitive dam-
ages against Local 98 for its willful, wanton and malicious
conduct.
155. Local 98’s willful, wanton and malicious conduct
was manifested by Local 98’s conduct previously directed
against [RAI] and others and the current conspiracy in
which Local 98 is a key and active participant.

Earlier portions of RAI’s complaint (pars. 38–47), captioned
“Prior Union Activity Directed Against [RAI] and Others,” had
included allegations regarding Local 98’s 1995 actions in con-
nection with RAI’s award of a “SEPTA” job and the low bid of
open-shop contractor Wescott on a fire alarm job at the Airport.
As to the SEPTA job, the complaint alleged that Local 98 had
“submitted information to SEPTA” regarding RAI’s financial
responsibility, in an “unsuccessful attempt . . . to have a public
entity classify [RAI] as ‘non-responsible’ and strip away an
award from [RAI] where [RAI] was the lowest responsible
bidder.” As to Wescott, the complaint alleged that Wescott had
initially been found “non-responsible” (a determination re-
versed on appeal) “as a result of information delivered to the
City by Local 98.”8 I infer that paragraphs 38–47 described
Local 98’s alleged conduct to which RAI referred in paragraph
155 of its complaint.
RAI’s complaint included the following prayer for relief:

8 Because the city thereafter restructured the bid on Airport jobs by
folding into the entire electrical contracting work the work on which
Wescott was the low bidder, Wescott never did perform the work on
which it had bid.
RAY ANGELINI, INC. 431
WHEREFORE, [RAI] demands judgment in its favor
and against Defendant Local 98 jointly and severally:
1. In an amount presently undetermined but well in
excess of $100,000.00;
2. Punitive damages;
3. Interest;
4. Costs;
5. Attorneys’ fees;

Attached to this complaint is a “Verification,” signed by RAI
President Angelini, stating, in part, “the facts set forth in the
[district court] complaint are true and correct to the best of my
information, knowledge and belief, and . . . this Verification is
taken pursuant to 18 Pa. C.S.A. § 4904 relating to unsworn
falsification to authorities.” In view of Raymond Angelini’s
signature on this “Verification” and the references in RAI’s
complaint to Local 98’s action in drawing RAI’s prevailing-
wage violations to the attention of city officials (see particularly
par. 67, which par. 148 of Count III incorporates by reference),
I do not credit Angelini’s testimony that such action by Local
98 was not a reason for RAI’s lawsuit against Local 98.9
Local 98’s June 5, 1996 answer to RAI’s complaint denied
the allegations in paragraph 37 that RAI’s disqualification oc-
curred at Local 98’s “initiation and instigation,” and denied that
Local 98 “collaborated” with any defendant or any other city
official to disqualify RAI, to preclude nonunion contractors
from performing work at the airport, or to divest RAI of its bid
in favor of Lombardo & Lipe. In addition, as to the allegations
involving Wescott, Local 98 admitted that Wescott had been
declared a nonresponsible bidder in consequence of information
submitted by Local 98, but denied, or disavowed knowledge
about, the other averments regarding Wescott. Local 98’s an-
swer denied the allegations in paragraphs 48–50; denied “as
stated” paragraphs 51–52; admitted paragraphs 53 and 54; and,
as to paragraph 55, stated:

The averments of this paragraph are legal conclusions
to which no responsive pleading is required. By way of
further answer . . . Local 98 merely submitted information
to the City regarding [RAI’s] violation of New Jersey laws
and engaged in no collaboration with any City officials.

In response to paragraph 116 of the complaint, which alleged,
inter alia, “Upon information and belief” that several of the
individual city defendants “were directly involved in encourag-
ing, requesting, and/or ordering” the appeals panel to rule
against RAI “in order to protect the Agreement which the City

9 Angelini’s testimony in this respect relied partly on RAI’s similar
conduct as to its competitors, and partly on RAI’s failure to sue its
competitors when they engaged in such conduct with respect to RAI.
As to the latter assertion, it is at least as likely that RAI’s failure to sue
its competitors was due to its disliking them less than it disliked Local
98, as that such failure was due to tolerance of such reports regardless
of source. I note the absence of evidence that prior to the Philadelphia
Airport job, such reports from Local 98 or competitors had ever caused
RAI to lose business. Angelini’s testimonial reliance on RAI’s failure
to name Local 98 as a defendant in the State court suit to enjoin the city
and Lombardo & Lipe from entering into a contract for the Philadelphia
Airport job overlooks the fact that Local 98 would not have been a
party to that contract.
had made with Local 98 and to further its goal of ‘union only’
at the airport,” Local 98’s answer “specifically denie[d] that it
made any ‘agreement’ with the City.” In response to paragraph
117 of the complaint, Local 98 stated, among other things, that
it had no agreement with the city to keep the airport union only.
In response to paragraph 118 of the complaint, Local 98 stated,
among other things, that it did not collaborate with the city in
any manner, and that it did nothing other than to provide the
city with information regarding RAI’s violation of State laws.
As to paragraph 124 of the complaint, Local 98’s answer stated
that these averments “are legal conclusions to which no respon-
sive pleading is required.” In addition, Local 98’s answer al-
leged that the complaint failed to state a claim upon which re-
lief could be granted, and that Local 98’s complained-of actions
were protected under Section 7 of the National Labor Relations
Act.
4. RAI’s April 1996 unsuccessful motion for injunctive relief;
Local 98’s May 1996 unsuccessful motion to dismiss the dis-
trict court complaint
Also on April 23, RAI filed with the district court a “motion
for temporary restraining order, preliminary injunction and/or
permanent injunction” against all of the defendants named in
the underlying lawsuit. This motion stated, inter alia:

15. Defendants’ wrongful conduct and conspiracy to
remove [RAI] from the Project . . . are more particularly
described in [attorney Cohen’s] affidavit.
16. As a consequence of the wrongful conspiracy to
violate [RAI’s] civil rights, [RAI] has lost unique and
valuable property rights and/or liberty interests, including
loss of its right to complete the electrical portion of the
[Philadelphia Airport] project as successful bidder.
. . . .
18. As a consequence, Lombardo & Lipe has been un-
justly enriched and stands to substantially benefit as a con-
sequence of the political considerations favoring contrac-
tors such as Lombardo & Lipe (signatory to a contract
with Local 98) vs. [RAI] (an open shop contractor).

RAI also submitted a proposed “temporary restraining order”
which included a provision enjoining the defendants, including
Local 98, “from in any respect illegally or improperly interfer-
ing with [RAI] in the lawful completion of the electrical por-
tions of the [Philadelphia Airport] Project.” Also, the proposed
order called for all defendants, including Local 98, to pay coun-
sel fees and costs incurred by RAI “in bringing this action.”
On May 14, 1996, Local 98 filed a motion to dismiss the
complaint on the ground, inter alia, that it failed to state a claim
on which relief may be granted. Local 98 asserted, inter alia,
that RAI’s complaint allegation of “a conspiracy between Local
98 and ‘other Defendants’ to violate [RAI’s] rights . . . does not
contain sufficiently specific allegations as to the conduct violat-
ing [RAI’s] rights, the time or place of that conduct, or the
identity of the conspiring parties. . . . Mere attempts to influ-
ence the enforcement or passage of legislation [are] not action-
able under federal law [citing cases]. Similarly, union repre-
sentations to State officials [do] not qualify as ‘acting under
color of state law’ if such representations do not purport to be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 432
done on behalf of the state. [RAI] avers that Local 98 simply
provided the City with factually verifiable information concern-
ing [RAI’s] prior wage and hour violations and lobbied the City
to preclude open shop electrical contractors from working at the
Philadelphia International Airport and specifically, on the elec-
trical project at issue . . . . Local 98’s actions constitute tradi-
tional, and constitutionally protected, political activities.”
By order dated May 22, 1996, the district court denied, with-
out opinion, Local 98’s motion to dismiss, and also such a mo-
tion by other defendants. By order dated May 26, 1996, and
issued after a May 22–24 hearing, the district court denied,
without opinion, RAI’s request for an injunction. 984 F.Supp.
at 875.
5. Local 98’s November 7, 1996 unsuccessful Motion for
Summary Judgment
Over date of November 7, 1996, Local 98 filed a Motion for
Summary Judgment in its favor. Local 98’s memorandum of
law in support of this motion averred, in part (emphasis in
original):

[RAI] possessed no evidence that Local 98 did any-
thing in this matter other than to advise the City of the re-
sults of its investigation into [RAI], and to request that the
City conduct its own investigation and declare [RAI] to be
a “non-responsible bidder.” While Local 98’s communi-
cation to the City may have been motivated by [RAI’s]
status as a non-union contractor, and by some desire to
preclude such contractors from obtaining City work, such
motivations and desires do not constitute state activity
[within the meaning of 42 U.S.C. § 1983].

. . . .

[RAI] possesses no evidence that Local 98 had any involve-
ment with the City’s refusal to reconsider the panel’s disquali-
fication decision. It did not share the results of its findings [as
to prevailing-wage violations by Lombardo & Lipe and other
union contractors on the Philadelphia Airport job] with Local
98, nor does [RAI] possess any evidence that Local 98 was
aware of its request for reconsideration or the submission of
its findings to the City.

[RAI’s] other argument is equally absurd and baseless. [RAI]
contends that the New Jersey prevailing wage violations were
merely a pretext for the City’s real reason for its disqualifica-
tion on [the Philadelphia Airport job]—The City’s satisfaction
of a “political deal” with John Dougherty, the business man-
ager of Local 98. [RAI] contends that its disqualification was
the “quid pro quo” for Local 98 bringing a national electrical
workers convention to the City during the summer of 1996.
The only “evidence” [RAI] possesses regarding this
“deal” stems from a conversation on March 15, 1996, be-
tween Plaintiff’s then-counsel, Roy Cohen, Esquire, and
Defendant Applebaum, the City’s Procurement Commis-
sioner. Cohen ran into Applebaum in an underground
concourse on that date [see supra pt. II,C,2].
Applebaum vigorously denied Cohen’s allegations,
both at the preliminary injunction hearing in this matter,
and in his deposition. The credibility dispute between
Cohen and Applebaum does not, however, create an issue
of material fact with respect to Local 98. Even if Cohen is
absolutely correct, Applebaum’s statements do not consti-
tute evidence or proof that Local 98 acted under color of
state law, or was somehow involved in a conspiracy to de-
prive [RAI] of civil rights. Applebaum’s alleged state-
ments constitute nothing more than perceptions; more im-
portantly, even if believed and said by Applebaum, the
statements are totally incorrect.

[RAI] will not, and cannot, offer any evidence that Local 98
or Dougherty were involved in the conduct of the Interna-
tional Brotherhood of Electrical Workers convention in Phila-
delphia in 1996. Ironically, [RAI] conducted no discovery
into these allegations, and has not even attempted to obtain
the convention contract from the City or the International un-
ion.
Dougherty took office as Business Manager of Local
98 on July 13, 1993. . . . The agreement to hold the con-
vention in Philadelphia in 1996 was reached between the
City and the International union in October, 1992. . . . .
Neither Dougherty nor Local 98 played any role in the
agreement reached between the City and the International
union regarding the 1996 convention. . . Moreover, that
agreement did not contain any provisions that would per-
mit the International union to cancel the convention be-
cause non-union contractors like [RAI] were performing
work at the Airport.
The only “pressure” Local 98 could bring to bear upon
the City was to complain about the award of a City con-
tract to a contractor with a verifiable history of prevailing
wage violations. Local 98 did nothing more than that, and
its complaints are well within its rights to petition gov-
ernment under the First Amendment.
To the extent that the City, and the individual City De-
fendants, may have perceived that the City owed a politi-
cal debt to Local 98 because of the 1996 convention, and
may have acted upon those beliefs to wrongfully deprive
[RAI] of civil rights, [RAI] may well be able to establish
liability against these defendants. Such beliefs and ac-
tions, however, do not establish that Local 98 acted under
color of state law here; nor do they prove in any way that
Local 98 is liable to [RAI] for the actions of City officials.

RAI’s November 25, 1996 memorandum of law in opposi-
tion to this Motion for Summary Judgment, and to such a mo-
tion filed by the city defendants, alleged, inter alia:

the circumstantial evidence in this case strongly suggests that
the City Defendants substituted Local 98’s agenda for their
own official authorization. It is readily apparent that Local
98’s agenda was to preclude an open-shop contractor from the
highly visible Airport Project at issue in this case (p. 3).

[RAI], as an open-shop contractor, is monitored on an ex-
tremely close basis by governmental enforcement agencies,
especially at the request of unions such as Local 98 (p. 5).

[RAI’s] complaint raises serious and disturbing issues con-
cerning the perversion of the public bidding process to politi-
cal expediency and the predatory, relentless and clearly ac-
tionable conduct of Local 98 (p. 6).
RAY ANGELINI, INC. 433

the evidence in this case fairly reeks of political favoritism
towards Local 98 and State conduct that was driven by im-
proper political and economic motivation (p. 7).
Dougherty admitted that “Local 98 takes an aggressive
stance with respect to non-union contractors” (p. 12).
Local 98’s “aggressive stance” with respect to open
shop contractors [includes?] monitoring non-union con-
tractors, investigating non-union contractors and regularly
engaging in activities known as “salting” (p. 13).10
According to Dougherty, he . . . told [deputy mayor]
Murphy that he had a problem with [RAI]; that . . .
Dougherty. . . had attempted to organize [RAI] as a union
contractor; that . . . Dougherty . . . was concerned because
[RAI] was coming into Pennsylvania (p. 13).
Dougherty admitted that he became angry as a conse-
quence of [deputy mayor] Murphy’s initial response to
Local 98’s complaints concerning [RAI] and that as a con-
sequence, Dougherty began to call and write to City
Council members (p. 13). [Cf. fn. 11, infra.]
Dougherty further admitted that Local 98 has made
monetary contributions to Mayor Rendell’s campaign and
that he (Dougherty) has been a political supporter of De-
fendant Rendell (p. 14) [Cf. fn. 11, infra.]
Dougherty wrote a letter dated January 17, 1996, to
Councilman Kenney, [who, Dougherty testified] has al-
ways been a supporter of union labor. (p. 14). [Cf. infra
fn. 11.]
Dougherty also contacted Councilman Mariano con-
cerning [RAI’s] successful bid. (p. 14)11
[T]he conduct at bar was completely pretextual and part of a
pre-arranged scenario arrived at by Defendants for political
reasons (p. 25).
According to [Attorney Roy] Cohen’s affidavit and his
testimony . . . Applebaum . . . admitted that the decision to
disqualify [RAI] had been made as a result of [Mayor]
Rendell’s and [City chief of staff David] Cohen’s political
obligations to Local 98 (p. 26).
[T]here is considerable evidence in this case that the [Dis-
qualification Hearing] panel reached a result which was irra-
tional, based upon political considerations, and prearranged as
per the directives of the Mayor and his Chief-of-Staff (p. 32).
Within the context of Local 98’s admittedly “aggres-
sive stance” against open shop contractors . . . Local 98’s
assertion of a public interest concern [that RAI was alleg-
edly not a responsible bidder] is more than a bit suspect.
When the Court considers that Local 98 supports union
contractors such as Lombardo and Lipe who have more se-
rious wage violations than [RAI], it becomes clear that
Local 98’s activities were predatory in nature (pp. 40–41).
The point is that Dougherty exerted political influence
on the City and the City bent to that influence. When the
Defendants collaborated in that fashion, they clearly vio-
lated [RAI’s] civil rights (p. 42).

10 See NLRB v. Town & Country Electric, 516 U.S. 85 (1995).
11 See 984 F.Supp. at 877, par. 36, 883, par. 17. I can find no other
probative evidence in the instant record concerning the matters set forth
in the last four quoted paragraphs.

On March 6, 1997, the district court denied, without opinion,
this Motion by Local 98 for Summary Judgment.
6. Documents produced during discovery procedures
a. The January 1996 memorandum from Murphy to Chief
of Staff David Cohen
One of the documents produced during the discovery proce-
dures conducted pursuant to RAI’s complaint was a memoran-
dum to Chief of Staff David Cohen from Deputy Mayor for
Labor Murphy, dated January 12, 1996. The memorandum
began as follows:

Re: Telephone Message from John Dougherty

I returned the phone call to John Dougherty who was
calling you regarding the B-C Terminal Electrical package
which is a $7M package. The facts are as follows:

Fact:

1. The low bidder was [RAI, which] is a large non-
union contractor from New Jersey.
2. [RAI’s] bid is low by [$600,000]. The next bidder
is Lombardo & Lipe, who is a union electrical contractor.
3. The low bid fell within one or two percent of the
estimate prepared by the Airport’s estimator which has
been right on the money in their estimates for the entire B-
C package.
4. All of the other [contracts] for B-C Terminal have
been awarded to union contractors.

Then, under the heading “IBEW 98: Concerns,” after spell-
ing out certain “arguments” which Local 98 had at least alleg-
edly advanced against awarding the airport contract to RAI,
Murphy, in effect, rejected or found lack of evidence as to each
of them. The memorandum went on to say:

Ramification:

1. John Dougherty has indicated that he will definitely
picket the job because it would cause him embarrassment
for a non-union contractor to have this large a job at the
Airport during a year when his International Convention is
in Philadelphia. In addition, he is running for reelection
this summer.
2. All the other contracts at B-C Terminal are union
and if there are pickets, we can expect that the other trades
will honor the pickets for a least a couple of days until
they are ordered back to work by the Project Manager
(Keating Co.).
3. I’m sure John will contact some Council members
to argue on his behalf.

[RAI] has had some city projects which I am currently re-
searching. As of this date, I have not found any violations on
any jobs performed by [RAI].

Among the “arguments” which as of January 12 Murphy had
found unsupported was, “They supposedly have information
that [RAI] has had violations in New Jersey and that if [it] has
one more violation, [it] will be debarred (Local 98 has not
submitted any documentation to substantiate this).” As previ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 434
ously noted, “documentation” of RAI’s New Jersey violations
was submitted to Murphy in late January 1996.
The district court summarized this January 12 memorandum
as follows (984 F.Supp. at 876, par. 21): “Mr. Murphy outlined
the facts, listing the various concerns which Local 98 had about
[RAI’s] bid and its bidder status.” Angelini testified to the
opinion that this memorandum by Murphy corroborated every-
thing attorney Roy Cohen had said in his affidavit (see supra pt.
II,C,2). Angelini further testified that he saw no problem with
Local 98’s picketing in general; that he had been picketed; that
if Local 98 pickets, the other trades working on the job are
likely to honor the picket line and shut the job down for a cou-
ple of days; that he saw no problem with another trade’s or an
individual union member’s honoring the picket line; and that
Angelini saw no problem with anybody’s lobbying elected
officials.
b. The purported October 1994 memorandum from Toland
to MJK Electric
Also produced during the discovery procedures was what at
least purports to be a handwritten memorandum, dated October
11, 1994, from Wendell Toland Jr. (an employee of the Minor-
ity Business Enterprise Council, an agency of the City of Phila-
delphia) to a representative of an electrical contractor, MJK
Electric Company, regarding at least facial defects as to under-
takings for minority hiring in a solicitation form submitted by
Wescott Electric Co. in connection with a proposed subcontract
with MJK for an airport fire alarm system. This memorandum
stated that two other employees of the Minority Business En-
terprise Council had told Toland that “Wescott is ‘out,’ based
on what they submitted. Due to the fact that Wescott and E.J.
Electric [not otherwise identified in the record] are non-union
and the fact that this is an election year, Local 98 stands a good
chance of getting this project to be Rebid. They (Local 98)
really have to lobby hard” (emphasis in original). Angelini
testified, “This is one of the documents. . . that persuaded me
to believe that there was a political dealing going on here.”
7. RAI’s proposed findings of fact and conclusions of law, and
RAI’s memorandum of law, filed with the district court in
July 1997
The district court conducted a bench trial on April 16–18, 21,
and 28, 1997. Testimony from the injunction hearing (con-
ducted on May 22–24, 1996) was considered as part of the trial
testimony (984 F.Supp. at 875).
On July 7, 1997, RAI filed with the district court a document
captioned “[RAI’s] Proposed Findings of Fact and Conclusions
of Law.” This document averred, inter alia, that RAI “asserts
that it was denied [the Philadelphia Airport contract] as a result
of [RAI’s] open shop (i.e., nonunion) status and the political
influence of defendant Local 98.” This document further in-
cluded the following assertions: “Local 98 takes an aggressive
stance with respect to non-union contractors” (p. 6). Dougherty
had been a “political supporter” of Mayor Rendell, had made
“political, monetary contributions” to him, and had attended
“political dinners” for him (pp. 7–8). Local 98 had contributed
money to Mayor Rendell’s campaign (p. 8). Local 98 had been
supportive of the local Democratic Party, including the provi-
sion of members’ services at the election polls (pp. 8, 12). One
or more of the city defendants had improperly disclosed RAI’s
confidential financial information (submitted in connection
with RAI’s bid for the Philadelphia Airport job) to Local 98
(pp. 14–15). Dougherty had called and written to city council
members about deputy mayor Murphy’s initial refusal to com-
ply with Dougherty’s request to disqualify RAI from the Phila-
delphia Airport project (pp. 20, 23–24). RAI’s disqualification
“occurred as a result of a conspiracy between defendants to
deny [RAI’s Philadelphia Airport bid] based upon its open-
shop status” (p. 51). Toland’s at least purported October 1994
memorandum to MJK about Wescott (supra pt. II,C,6,b) is
“persuasive and convincing evidence that the City’s procure-
ment process is subject to political influence by Local 98 and
that the City and Local 98, acting in concert, have pursued a
policy of improperly and unlawfully restricting the work per-
formed by open-shop contractors at the Airport” (p. 67).
“Dougherty’s predatory attitude and actions with respect to
work at the Airport can be measured by the erosion of open-
shop contractors working at the Airport” (p. 71). In October
1996, an individual who identified himself to an RAI employee
as a Local 98 member told that employee that “we took that job
away from you on the airport,” and that “as a result of Dough-
erty’s political connections, members of Local 98 were receiv-
ing more work than they had in six years and that Dougherty’s
political power has resulted in [RAI’s] disqualification from the
Project” (p. 71) “Defendants’ arrogance” is reflected by “con-
tradictory testimony by the City’s officials and Local 98” (p.
72). If RAI had been awarded the Philadelphia Airport job,
RAI’s “direct return” would have amounted to about
$1,150,000 (p. 73). “Defendants’ actions were not rationally
related to any legitimate governmental interest but, instead,
were motivated by political and/or economical [sic] motives”
(p. 77). Local 98 “acted in concert with a public agency and its
officials . . . to deprive [RAI] of its constitutional rights” (p.
77). RAI’s “disqualification . . . and classification as non-
responsible resulted from political influence and/or the agree-
ment between the City and Local 98 and constituted arbitrary
and irrational government action” (p. 77). “Defendants acted
with malice or indifference to [RAI’s] constitutionally pro-
tected rights when they perpetrated their scheme to deprive”
RAI of the Philadelphia Airport job (pp. 77–78).
RAI’s 34-page memorandum of law to the district court in
support of these “Proposed Findings” included the following
statements:

Not only did Local 98 fail to deny its predatory, fero-
ciously aggressive view of open shop contractors such as
[RAI], inexplicably, Local 98 and its attorneys bragged of
Local 98’s “aggressive stand” and frequent attacks upon
open shop contractors (p. 5). [Local 98 witnesses’ expla-
nations as to why the City reversed the disqualification]
are a study in cynicism, half-truths and deceit (p. 12).
Dougherty circulated . . . a vitriolic screed against [RAI]
(p. 14). [RAI] lost [the Philadelphia Airport job], one of
the most prestigious jobs in the Company’s history, be-
cause of the political considerations referenced above and
Local 98’s raw political power (p. 17) . . . defendants col-
laborated and conspiratorially predetermined that [RAI]
RAY ANGELINI, INC. 435
would be disqualified as “non-responsible” (p. 21). . . . A
fair inference from the preponderance of the evidence pre-
sented is that Local 98 exerted influence to pervert the law
through an agreement between the City and Local 98 that
[RAI] would not get this job at any price and/or regardless
of the circumstances (p. 26). Dougherty’s incredible and
arrogant testimony that he was able to comment upon
[RAI’s] financial statement as a result of a “calculated
guess” reveals defendants’ willingness to effectively flaunt
their conspiracy before this Court (p. 26). Dougherty for-
warded Local 98’s report (an unjust and inaccurate in-
dictment) against [RAI] to [the mayor’s chief of staff and
office]. Thus, Local 98’s conduct was far more pernicious
. . . than a proper exercise of First Amendment rights in
connection with lobbying for legislation (p. 27). . . . In de-
termining the amount of punitive damages to be assessed
against Local 98 and the individual City Defendants, the
Court should consider . . . the amount of time each defen-
dant engaged in the outrageous conduct [and] the potential
profits each defendant may have made from its outrageous
conduct (p. 32).
8. The district court’s November 1997 dismissal of
RAI’s complaint
On November 24, 1997, the district court issued a memoran-
dum dismissing RAI’s complaint in its entirety, with prejudice.
Ray Angelini, Inc. v. City of Philadelphia, 984 F.Supp. 873
(E.D.Pa. 1997). This judgment was never appealed; Angelini
testified that RAI did not appeal because of the expense in-
volved. RAI conceded at the outset of the hearing before me
that RAI was bound by the district court’s factual findings to
the extent that they were necessary to the district court’s deter-
mination.
The district’s court’s memorandum included the following
findings: Prior to the February 1996 hearing on RAI’s appeal of
the disqualification determination with respect to the Philadel-
phia Airport project, defendants Egan and Coleman, both
whom sat on the panel, were not aware of any city policy to
disfavor nonunion contractors in public works contracts (984
F.Supp. at 878, pars. 62, 68). Nobody indicated to Egan, either
directly or in any fashion, how she was to cast her vote (984
F.Supp. at 878, par. 60). Nobody in City government indicated
by suggestion or directly how Coleman should vote (984
F.Supp. at 878, par. 69). Prior to the disqualification hearing,
Egan did not know whether RAI was union or nonunion (984
F.Supp. at 878, par. 51). RAI’s nonunion status did not play
any role in the casting of Coleman’s vote, and did not play any
role either at the hearing or during the deliberations (984
F.Supp. at 879, par. 71). In casting his vote, Applebaum (the
third member of the panel) was not influenced in any way by
the wishes or directives of Local 98 (984 F.Supp. at 879, par.
77). Egan, Coleman, and Applebaum, in that order, voted
unanimously to uphold RAI’s disqualification (984 F.Supp. at
878, pars. 58, 59). Egan so voted because of RAI’s New Jersey
prevailing-wage violations, which in her mind were not dis-
proven at the hearing (984 F.Supp. at 878, par. 63). Coleman
so voted because he did not think that a case was presented
such that disqualification should be overruled (984 F.Supp. at
878–879, par. 70). Egan was not promised any benefits or
anything of value in exchange for her vote, and her promotion
after the hearing was not the result of any vote she cast there
(984 F.Supp. at 878, pars. 64–65). The Philadelphia Airport
job was not subject to a project labor agreement (984 F.Supp. at
881, par. 124). The City had no official or unofficial prounion
policy with respect to the procurement and award of public
contracts, and has no policy of trying to disqualify nonunion
bidders simply because they are nonunion (984 F.Supp. at 881-
882, par. 125). There was no agreement between Mayor
Rendell and Local 98 with respect to the award of competi-
tively bid contracts (984 F.Supp. at 882, par. 126). The letter
agreement with respect to the September 1996 IBEW conven-
tion at the Pennsylvania Convention Center had been entered
into by the Convention Center’s representative and the IBEW
in 1992, and the convention was not a quid pro quo for any city
action on behalf of Local 98 with respect to RAI (984 F.Supp.
at 882, pars. 130–131). Whether Local 98 would have been
embarrassed during that convention because a nonunion con-
tractor was performing work at the airport was not something
that Mayor Rendell or the city was concerned about and was
not something that would have influenced the city’s actions
(984 F.Supp. at 882, par. 132). Local 98 never obtained a copy
of RAI’s financial statements (984 F.Supp. at 877, par. 46).
Both Applebaum and Attorney Roy Cohen testified before
the district court. As to their March 15, 1996 conversation, the
subject of Roy Cohen’s affidavit (see supra pt. II,C,2), the dis-
trict court found as follows (984 F.Supp. at 879–880, citations
to the district court record omitted):

90. During their encounter, Commissioner Applebaum
and attorney Cohen had a discussion relating to a press
conference that Angelini had threatened to hold with re-
spect to its disqualification.
91. During the discussion, Commissioner Applebaum
expressed to attorney Cohen that he was unhappy with the
decision to disqualify Angelini and probably said that it
was a shame that the City had to expend an additional
$600,000.
92. During the discussion, Commissioner Applebaum
suggested to attorney Cohen that attorney Cohen could
talk to the City’s lawyers and that there could hopefully be
an arrangement to remove the disqualification through an
expungement, because in Commissioner Applebaum’s
view there was never any intention to hurt [RAI] (or any
other vendor that does business with the City).
93. The discussion regarding expungement was not in-
tended to result in making [RAI] the qualified bidder and
being awarded the contract.
94. Commissioner Applebaum did not tell attorney
Cohen that Mayor Rendell and Chief of Staff Cohen had
collaborated with Local 98.
95. Commissioner Applebaum has no knowledge of
whether Local 98 ever helped Mayor Rendell politically in
any respect.
96. Chief of Staff Cohen never had a conversation
with Commissioner Applebaum in which he expressed a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 436
view as to how he would feel if [RAI] were to hold a press
conference.

The district court’s conclusions of law included the follow-
ing: RAI had failed to show that the city’s procurement de-
partment had a prounion or antiopen-shop contractor policy
when it initially disqualified RAI on the Philadelphia airport
job (984 F.Supp. at 882, par. 5). RAI had failed to prove that
this department’s decision to disqualify RAI on that job was the
result of improper political influence or agreement between the
city and Local 98 (984 F.Supp. at 882, par. 6). “The evidence
in this matter indicates that Local 98 submitted information to
various city officials about [RAI]. The city conducted its own
investigation into Local 98’s allegations and rejected all but the
alleged violations of the prevailing wage laws. Local 98 did
not act with any State appeals to deprive [RAI] of a constitu-
tionally protected right” (984 F.Supp. at 883, par. 17).
The district court’s order required RAI to pay the costs of the
proceeding, but denied Local 98’s request for counsel fees. 984
F.Supp. at 885.
9. The May 1996 charge, and the February 1998 complaint, in
the instant proceeding
Meanwhile, on May 7, 1996, about 2 weeks after RAI had
initiated its lawsuit in the district court, Local 98 filed its
charge herein, alleging, inter alia, that RAI “initiated [the dis-
trict court lawsuit] in retaliation for Local 98’s provision of
information to the city, and for Local 98’s success in having
[RAI] removed from a project.” The charge requested relief
under Section 10(j) of the Act. By letter dated June 28, 1996,
the Regional Director advised RAI’s and Local 98’s counsel,
“It was concluded that further proceedings should be held in
abeyance pending the disposition of the lawsuit.” The com-
plaint before me issued on February 20, 1998, about 3 months
after the district court dismissed RAI’s complaint before it.
D. Analysis and Conclusions
The General Counsel’s claim rests on Bill Johnson’s Restau-
rants v. NLRB, 461 U.S. 731 (1983), where the Supreme Court
held that an employer violates Section 8(a)(1) of the Act by
filing and processing an unsuccessful lawsuit in retaliation for
the exercise of rights protected by Section 7. Although involv-
ing an employer’s lawsuit against individual employees, Bill
Johnson’s has been held applicable to lawsuits against unions
with respect to lawful conduct which may tend to further the
exercise of Section 7 rights by statutory employees. BE& K
Construction Co., 329 NLRB 717 (1999); Petrochem Insula-
tion, Inc., 330 NLRB 47 (1999); and cases cited. The principal
issue in this case is whether RAI’s lawsuit against Local 98 was
retaliatory within the meaning of Bill Johnson’s.
As stated in Petrochem Insulation, supra, a lawsuit aimed di-
rectly at protected activity necessarily tends to discourage simi-
lar protected activity and is, by definition, retaliatory within the
meaning of Bill Johnson’s. RAI concedes (Br. 5) that at least
standing alone, Local 98’s conduct in reporting to city officials
RAI’s violation of New Jersey prevailing wage laws in the
performance of public works projects in New Jersey constituted
activity protected by Section 7 of the Act.12 Furthermore, at
least standing alone, Union Business Agent Dougherty’s at
least alleged efforts to lobby State government officials, in
order to induce them to award (or to persuade other government
officials to award) public works projects to union shop rather
than to open shop contractors, were likewise protected by Sec-
tion 7. See BE & K, supra, and cases cited; Petrochem, supra,
and cases cited; Bristol Farms, 311 NLRB 437 (1993). Such
precedents show that standing alone, RAI’s contention (Br. pp.
6, 13) that Section 7 did not protect efforts by Local 98 “to
have [city] council members politically influence the bid-
ding/investigation process” and to use “political influence to
have [RAI] knocked off the Airport Project” has no merit.13 As
noted supra, part II,C,3, RAI’s district court complaint as to
Local 98 specifically described Local 98’s action in calling to
city officials’ attention RAI’s violations of New Jersey prevail-
ing wage laws (see pars. 67, 148). In addition, as previously
noted, RAI’s district court complaint alleged (pars. 48–50) that
Local 98 Business Agent Dougherty had “advised the city of
his desire to preclude open shop electrical contractors from
working” at the Airport project; that the city and the defendant
city officials “agreed to assist” Local 98 in that endeavor; that
the city had “entered into an understanding with Local 98 . . .
whereby the City assured Local 98 that [the City] will attempt
to preclude open shop contractors from working at the Airport;”
and that “This understanding was a quid pro quo for the electri-
cal workers bringing a national electrical workers’ convention
to the City . . . in the summer of 1996.”14 That RAI’s recita-

12 Eastex, Inc. v. NLRB, 437 U.S. 556, 564–570 (1978); BE & K, su-
pra. RAI’s brief to me (p. 5) states that in an attempt to have RAI
deemed a nonqualified bidder, Local 98 prepared and distributed to the
city a report criticizing RAI (see 984 F.Supp. at 876, par. 22). RAI’s
brief to me also alleges, citing only its proposed findings of fact in the
district court proceeding, that Union Business Agent Dougherty told
Deputy Mayor Murphy (1) that RAI’s “financial statement” was ques-
tionable, (2) that RAI had obtained a mortgage for a sum allegedly in
excess of the worth of the mortgaged building, and (3) that RAI had a
problem with minority participation on a project in New Jersey. As to
the assertions in the last sentence, the only relevant probative evidence
I can find in the record before me is pp. 64–68 of Dougherty’s deposi-
tion in the district court proceeding (several pages of which were re-
ceived in evidence as part of R. Exh. 6), which does not wholly support
these assertions in RAI’s brief. In any event, RAI’s brief to me (p. 5)
concedes that all of Local 98’s at least alleged conduct described in this
footnote is lawful activity protected under Sec. 7.
13 However, RAI’s July 1997 “Memorandum of Law in Support of
Proposed Findings of Fact and Conclusions of Law” states at p. 28, “no
part of this case relates to ‘lobbying efforts.’” Further, Angelini testi-
fied that he saw no illegality or problem with lobbying, and saw no
problem with a person’s having political connections.
14 Local 98’s answer to the district court complaint alleged (par. 49),
and the district court found (984 F.Supp. at 882, par. 130), that Local
98’s parent International and the city had entered into an agreement in
1992 regarding the September 1996 convention in Philadelphia. Ange-
lini testified, in effect, that such contracts are sometimes canceled.
Local 98’s complained-of activities began about 9 months before the
convention was scheduled to begin, and Attorney Cohen’s affidavit
accompanying RAI’s district court complaint states that according to
commissioner Applebaum, 5000 people were expected to attend the
convention. However, Angelini testified in February 2000 that a con-
RAY ANGELINI, INC. 437
tions in its district court complaint implicated Section 7 is fur-
ther indicated by the statement of RAI’s counsel, at the outset
of the hearing, that the foregoing conduct by Local 98 was
motivated by Dougherty’s desire to be reelected as business
agent; although there is little specific record evidence of such
motives by Dougherty, the existence of such motives by an
elected union official not only is a natural inference, but also is
one of the very reasons why Federal law and/or the Union’s
internal rules make its officials’ job security subject to periodic
elections. Because an employee exercises Section 7 rights
when he runs for, or votes or campaigns in an election for, un-
ion office, or attempts to induce customers or government offi-
cials to use union (rather than nonunion) firms,15 a derivative
Section 7 right is exercised by a union official’s efforts to in-
gratiate himself with potential voters in his reelection campaign
by (as here) thus seeking to obtain jobs for union firms (and,
therefore, necessarily to limit the job opportunities of employ-
ees who work for nonunion firms). Further, RAI’s November
1996 opposition to Local 98’s Motion to the district court for
Summary Judgment relied on, among other things, “circum-
stantial evidence” that Union Business Agent Dougherty at-
tempted to bring about RAI’s disqualification by, inter alia,
calling and writing members of the Philadelphia City Coun-
cil—alleged conduct which would be presumptively protected
by Section 7 (cf. supra, fn. 13). Indeed, even RAI’s proposed
findings of fact and conclusions of law to the district court (GC
Exh. 4, p. 77, par. 5) merely state that RAI’s disqualification
and classification as a non-responsible bidder “resulted from
political influence and/or the agreement between the City and
Local 98” (emphasis added).
Moreover, the district court complaint on its face not only
indicates that the complaint was directed against Local 98’s
admittedly protected conduct in reporting prevailing-wage vio-
lations to public authorities, but also indicates specific resent-
ment against such protected reports. Thus, the complaint de-
scribes as “willful, wanton and malicious conduct” Local 98’s
submission of information to appropriate agencies with respect
to both the Philidelphia Airport job and in unsuccessful efforts
to disqualify RAI with respect to a 1995 public works project
and another nonunion contractor (Wescott) with respect to a
1995 fire alarm system job (see pars. 38–46, 148, 155).16 Also,
with less specificity, the complaint alleges that “Local 98 acted
with reckless and callous disregard and indifference to [RAI’s]
rights and liberty interest.” A retaliatory motive is further

vention “involving tens of thousands of people” which was scheduled
for the early summer of 2000 had been arranged for in late 1999.
15 See Barton Brands, 298 NLRB 976, 980 (1990); Circle Bindery,
Inc., 218 NLRB 861 (1975), enfd. 536 F.2d 447 (1st Cir. 1976); Bristol
Farms, supra, 311 NLRB 437.
16 I do not credit Angelini’s testimony that this allegation was in-
cluded in the complaint because of reports from his son and others,
apparently after the disqualification hearing as to the SEPTA job for
which RAI successfully bid in 1995, that the younger Angelini “was
taunted by Local 98 Business Agent [presumably Dougherty]; invited
to fight, and they even shoved him.” The district court complaint does
not refer to this alleged incident, and Paragraph 155 of the complaint
refers to Local 98’s conduct “previously directed against [RAI] and
others.”
evinced by RAI’s request for punitive damages (in addition to
actual damages, as to which the district court found little sup-
porting evidence; see 984 F.Supp. at 881, especially par. 118);
see H. W. Barss Co., 296 NLRB 1286, 1287–1288 (1989); Pet-
rochem, supra. Also, RAI counsel’s November 25, 1996,
memorandum of law in opposition to Local 98’s November 7,
1996 Motion for Summary Judgment (supra pt. II,C,5), and
RAI counsel’s posttrial memorandum and proposed findings of
fact and conclusions of law (supra pt. II,C,7) filed with the
district court, are rather more uncomplimentary of Local 98’s
motives and conduct than would ordinarily be expected in a
lawsuit free of retaliatory intent.17
Notwithstanding the foregoing Section 7 status of Local 98
activities thus described and characterized in RAI’s district
court complaint, RAI contends before me that this complaint
was not directly aimed at protected activity but, instead, was
initiated on the basis of the contention that a “conspiracy” ex-
isted between Local 98 and the city defendants. The difficulty
with this contention is that the Section 7 conduct described
above (including Local 98’s at least alleged use of “political
influence”) is the only conduct which RAI’s complaint even
suggests was engaged in by Local 98 in furtherance of this al-
leged “conspiracy.” The conclusion that RAI’s complaint
against Local 98 was really limited to such union conduct is
further pointed to by other statements in RAI’s November 1996
“Memorandum of Law Contra Defendants’ Motions for Sum-
mary Judgment”. Thus, this “Memorandum” states:

[T]he circumstantial evidence in this case strongly suggests
that the City Defendants substituted Local 98’s agenda for
their own official authorization. It is readily apparent that Lo-
cal 98’s agenda was to preclude an open-shop contractor from
the highly visible Airport Project at issue in this case (p. 3).

[T]here is considerable evidence that the panel [which re-
jected RAI’s disqualification appeal] reached a result which
was irrational, based upon political considerations, and prear-
ranged as per the directives of the Mayor and his Chief-of-
Staff (p. 32).

[T]he point is that Dougherty exerted political influence on
the City and the City bent to that influence (p. 42).

No more than this is suggested by the statements attributed to
Commissioner Applebaum by Attorney Roy Cohen’s affidavit,
which according to president Angelini’s testimony accurately

17 “Local 98’s activities were predatory in nature.” “Dougherty’s
predatory attitude and actions.” “Defendants’ arrogance.” “Defendants
acted with malice or indifference to [RAI’s] constitutionally protected
rights when they perpetrated their scheme.” “Not only did Local 98 fail
to deny its predatory, ferociously aggressive view of open shop con-
tractors such as [RAI], inexplicably, Local 98 . . . bragged of Local 98’s
‘aggressive stand’ and frequent attacks upon open shop contractors.”
Local 98’s witnesses’ testimony is “a study in cynicism, half-truths, and
deceit.” Dougherty circulated “a vitriolic screed “ against RAI.
“Dougherty’s incredible and arrogant testimony.” “Dougherty for-
warded Local 98’s report (an unjust and inaccurate indictment) against
[RAI] to [city officials]. Thus Local 98’s conduct was far more perni-
cious . . . than a proper exercise of First amendment rights in lobbying
for legislation.” “[E]ach defendant engaged in outrageous conduct.”
Local 98’s “predatory, relentless, and clearly actionable conduct.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 438
reflects the statements to him by Cohen which allegedly led
Angelini to conclude that Local 98 was a party to an actionable
“conspiracy” against RAI. Cohen’s affidavit merely attributes
to Applebaum the statements that the city defendants had de-
cided to award the Philadelphia Airport contract to Lombardo
& Lipe “as a result of [their] political obligations to Dough-
erty;” that “it would not look good” if a non-union contractor
was working on the Philadelphia Airport project when the un-
ion convention came to town; and that “it was only when Ge-
rald Murphy, Deputy Mayor For Labor, receives a lot of pres-
sure from a particular labor union that he uses his power to
declare a contractor non-responsible to obtain the desired re-
sult.” Indeed, RAI’s November 1996 “Memorandum of Law
Contra Defendants’ Motions for Summary Judgment” states (p.
45) that Attorney Roy Cohen’s “knowledge” that Local 98
“collaborated with the City to pervert the public bidding proc-
ess” was based merely on “the existence of the union’s influ-
ence in the collaboration” as “admitted” by alleged City col-
laborator Applebaum. Accordingly, I do not credit Angelini’s
testimony that Attorney Cohen’s March 15, 1996 description to
Angelini of Applebaum’s remarks led Angelini to conclude that
RAI had been kicked off the job because of a “conspiracy”
between Local 98 and city officials.
Nor do I credit Angelini’s testimony that in maintaining
RAI’s lawsuit against Local 98 with respect to the Philadelphia
Airport job for which the city had solicited bids in late 1995, he
was partly motivated by his inspection of a handwritten docu-
ment (obtained during discovery procedures) purporting to be
an October 1994 memorandum from an employee (Wendell
Toland Jr.) of the City’s Minority Business Enterprise Council
to an electrical contractor (MJK) in connection with subcon-
tractor Wescott (supra sec. II,C,6,b). The thrust of this memo-
randum was that Wescott was unlikely to obtain a contract for
an airport fire alarm system, for which Wescott was apparently
the low bidder, because of at least facial defects as to undertak-
ings for minority hiring in a solicitation form submitted by
Wescott. As to the effect of Wescott’s nonunion status, To-
land’s purported memorandum merely stated that because Wes-
cott and another firm (whose role is not shown by the record)
were nonunion and “this is an election year,”18 Local 98 stood a
“good chance of getting this project to be rebid” but Local 98
would “really have to lobby hard” (supra pt. II,C,6,b). As the
General Counsel’s brief points out (pp. 13–14, fn. 8), “If the
City and the Union were part of a conspiracy/arrangement/quid
pro quo, then why would the Union have to ‘lobby hard’?”19
Neither do I credit Angelini’s testimony that RAI maintained
the lawsuit against Local 98 partly because of the January 1996
memorandum (obtained during discovery procedures) from

18 It is unclear what “election” this October 1994 document was re-
ferring to. Union Business aAgent Dougherty at least allegedly sought
reelection in the summer of 1996 (see R. Exh. 2, p. 2). The record fails
to show the date for which the earliest municipal election was sched-
uled.
19 This fire-alarm job was never awarded as such and was eventually
folded into the Philadelphia Airport job. Angelini testified that when
bidding for the Philadelphia Airport job, he intended to use Wescott as
a subcontractor on that job. See also fn. 20, infra.
Deputy Mayor Murphy to City Chief of Staff David Cohen.20
This memorandum indicates that as of the date it was written
(January 12, 1996), Murphy saw no reason to deny RAI the
Philadelphia Airport job (supra sec. II,C,6,a).
In short, I do not accept Angelini’s testimony that RAI’s
claim of an actionable role by Local 98 in the “conspiracy” did
not consist of (or even include), Local 98’s Section 7-protected
conduct. Rather, I find that the conduct which RAI claimed as
Local 98’s part in the alleged “conspiracy” with the city defen-
dants consisted of Local 98’s protected action in providing the
City with information regarding RAI’s New Jersey wage-
standards violations and in lobbying various city officials in an
effort to obtain city contracts for union contractors. Neither do
I accept RAI’s contention, based mostly on Angelini’s testi-
mony, that RAI initiated and/or maintained its lawsuit against
Local 98 partly in order to protect the right of RAI’s employees
to work without union representation. In so arguing, RAI relies
mostly on the fact that a majority of its electrical employees
voted “for the Employer” in an election where a local union
other than Local 98 was on the ballot, and which took place
more than 7 years before the events here at issue. Cf. Operat-
ing Engineers Local 3 (Specialty Crushing), 331 NLRB 369 fn.
10 (2000).21
For the foregoing reasons, I conclude that RAI filed, main-
tained, and prosecuted its unsuccessful district court lawsuit
against Local 98 in retaliation for the exercise of rights guaran-
teed by Section 7 of the Act, and thereby violated Section
8(a)(1).
CONCLUSIONS OF LAW
1. RAI is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local 98 is a labor organization within the meaning of
Section 2(5) of the Act.
3. RAI has violated Section 8(a)(1) of the Act by filing,
maintaining, and prosecuting a lawsuit against Local 98 in re-
taliation for the exercise of rights guaranteed by Section 7 of
the Act.
4. The unfair labor practice described in Conclusion of Law
3 affects commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that RAI has engaged in certain unfair labor
practices, I shall recommend that RAI be required to cease and
desist from such conduct, and like or related conduct.
Affirmatively, RAI will be required to reimburse Local 98
for all legal and other expenses incurred in defending against
20 This January 1996 memorandum from Murphy suggests that the
City’s failure to award the fire alarm system to Wescott, the low bidder,
was due to its having had “a number of Federal violations.” The
memorandum further suggests that when bidding for the Philadelphia
Airport job, RAI was not required to specify its intended subcontrac-
tors, including Wescott.
21 However, because RAI’s employees were not parties to the district
court proceeding, I find no merit to the General Counsel’s reliance (Br.
p. 9) on RAI’s failure to include in its complaint a request that damages
be paid to them.
RAY ANGELINI, INC. 439
RAI’s lawsuit, plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987); and Teamsters Local
776 (Rite Aid Corp.), 305 NLRB 832, 835–836 and fn. 10
(1991), enfd. 973 F.2d 230 (3d Cir. 1992), cert. denied 507 U.S.
954 (1993). Petrochem Insulation, supra, 330 NLRB 47; BE &
K Construction, supra, 329 NLRB 717. Although RAI’s brief
(p. 25) asserts that RAI’s case “was not deemed so unreason-
able by the judge that heard the entire case that [attorneys’] fees
were warranted,” this ruling by the district court judge (who
gave no reason for his denial, 984 F.Supp. at 885, par. 3) does
not render inappropriate a Board remedial order for reimburse-
ment of such fees. As the Board said in BE & K, supra at 728
(emphasis in original, footnote omitted):

We do not award attorneys’ fees in Bill Johnson’s
cases because employers’ suits are frivolous. We award
them because the suits are unlawful; they themselves con-
stitute the unfair labor practices for which a remedy must
be provided. As the court of appeals correctly observed in
[Geske and Sons, Inc. v. NLRB, 103 F.3d 1366, 1379 (7th
Cir. 1997)], the Unions would not have incurred those at-
torneys’ fees except for [the employer’s] meritless lawsuit,
and it is both appropriate and necessary that they be made
whole and to provide an economic disincentive for engag-
ing in similar unlawful conduct.

Of course, RAI will not be required to pay Local 98’s litigation
expenses to the extent that RAI has already paid them pursuant
to the district court’s order.
With the consent of all parties, I received into the record cer-
tain evidence showing the amounts, which would be due Local
98 from such an order. This evidence shows as follows: Local
98’s legal expenses in defending the lawsuit (i.e., fees and dis-
bursements) totaled $72,689.28. The district court required
RAI to pay Local 98 certain costs in the amount of $9168.04,
and RAI paid that amount directly to Local 98. The parties
stipulated that the legal fees charged by Local 98’s law firm for
representing Local 98 were reasonable. Of the Union’s ex-
penses, a total of $63,521.24 remains unreimbursed. Accord-
ingly, RAI will be required to pay Local 98 a total of
$63,521.24, plus interest.
In addition, RAI will be required to post appropriate notices
at its facility in Sewell, New Jersey, the location requested by
the General Counsel by letter to me dated May 2, 2000.
On the these findings of fact and conclusions of law and on
the entire record, I issue the following recommended22
ORDER
The Respondent, Ray Angelini, Inc., Sewell, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Filing, maintaining, or prosecuting lawsuits with causes
of action against International Brotherhood of Electrical Work-
ers, Local Union No. 98, that are without legal merit and that

22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
are motivated to retaliate against activity protected by Section 7
of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Reimburse Local 98 for its legal and other expenses in-
curred in the defense of the lawsuit filed by Ray Angelini, Inc.,
in the amount of $63,521.24, plus interest in the manner set
forth in the remedy section of this decision.
(b) Within 14 days after service by the Region, post at its
facility in Sewell, New Jersey, copies of the attached notice
marked “Appendix.”23 Copies of this notice, on forms provided
by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed its Sewell, New Jersey, facility,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since April 23,
1996.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT file, maintain, or prosecute lawsuits with
causes of action against International Brotherhood of Electrical
Workers, Local Union No. 98, that are without legal merit and
are motivated to retaliate against activity protected by Section 7
of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 440
WE WILL reimburse Local 98 for the legal and other ex-
penses, plus interest, which Local 98 incurred in the defense of
our lawsuit, to the extent that we have not already done so pur-
suant to the order of the court before which we brought the
lawsuit. Exclusive of interest, the net amount which we will
thus pay is $63,521.24.

RAY ANGELINI, INC.