Laborers' International Union of North America, Local 872 (TV Transport)

373 NLRB No. 14 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Laborers’ International Union of North America, Lo- cal 872 (TV Transport) and David Outcalt. Case 28–CB–267014 January 11, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On April 7, 2023, Administrative Law Judge Andrew S. Gollin issued the attached decision, and on April 11, 2023, he issued an errata. The General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief. In ad- dition, the Respondent filed cross-exceptions and a sup- porting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed reply briefs. 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 conclusions and to adopt the recommended Order.2 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Dated, Washington, D.C. January 11, 2024 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member 1 There are no exceptions to the judge’s finding that the Respondent was party to the Project Labor Agreement for the Las Vegas Stadium. We adopt the judge’s finding that the complaint allegations were un- timely under Sec. 10(b) of the Act and, as a result, we dismiss the com- plaint. We therefore find it unnecessary to pass on the judge’s rulings and findings related to the sufficiency of the service of the charge on the Respondent, including his denial of the General Counsel’s motion to amend the complaint and rejection of GC Exhs. 3 and 4. We also find it unnecessary to pass on the Respondent’s cross-exception that the judge failed to dismiss the complaint under the Supreme Court’s major- ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Judith Dàvila and Mehmet Kepir, Esqs., for the General Counsel. David Rosenfeld, Esq., for Respondent. Aaron B. Solem and Mathew Gilliam, Esqs., for Charging Party. DECISION STATEMENT OF THE CASE1 ANDREW S. GOLLIN, ADMINISTRATIVE LAW JUDGE. This hear- ing was held on February 28 and March 1, 2023, in Las Vegas, Nevada, over allegations that Laborers’ International Union of North America, Local 872 (Local 872 or Union) violated Section 8(b)(1)(A) and (b)(2) of the National Labor Relations Act (Act) by receiving assistance and support from TV Transport and As- cent Works, LLC regarding employees working on the Allegiant Stadium construction project. The critical facts are largely un- disputed. Andreas Olson, the owner and operator of Ascents Works, agreed with TV Transport to recruit, train, and oversee a crew hired to install a specialty scaffolding/fall protection net- ting system. David Outcalt was hired for that crew. On January 18, 2020, Olson emailed Outcalt that he would need to join Local 872 for the duration of the project, which Olson expected to last about 2.5 months. On February 4, 2020, Olson accompanied Outcalt and other new hires to Local 872’s offices where Olson paid their Union dues and fees through April 2020. Outcalt worked on the crew until about March 18, 2020, when he was laid off. The crew completed their installation work in mid-April 2020. On July 31, 2020, Outcalt filed a charge in Case 28–CA– 263955 alleging that TV Transport violated Section 8(a)(1) and (2) of the Act within the last 6 months by providing unlawful assistance and support to an unnamed labor organization. (GC Exh. 1(n).) On September 24, 2020, Outcalt filed a charge in Case 28–CA–266995 alleging, in part, that Ascent Works vio- lated Section 8(a)(1) and (2) of the Act within the last 6 months when it dominated or interfered with the formation or admin- istration of a labor organization or contributed financial or other support by requiring employees to join Local 872 as a condition of employment. (GC Exh. 1(r).) At issue is Outcalt’s September 24, 2020 charge against Local 872 alleging, in part, that it vio- lated Section 8(b)(1)(A) of the Act since February 2020, when it caused or attempted to cause an employer to pay or agree to pay questions doctrine, as described in West Virginia v. EPA, 142 S.Ct. 2587 (2022). 2 We decline the Respondent’s request to order Region 28 to post a notice and issue an apology for pursuing this case. 1Abbreviations used in this decision are as follows: Transcript cita- tions are “Tr.”; General Counsel exhibits are “GC Exh.__.” Joint exhibits are “Jt. Exh.__,” and Rejected Exhibits are “Rej. Exh. ___.” Although I have included several citations to the record to highlight specific testi- mony or exhibits, my findings and conclusions are not limited to those portions and instead are based on my review and consideration of the entire record. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 money or thing of value for services which are not performed or not to be performed. (GC Exh. 1(a).) On October 2, 2020, Re- gion 28 mailed this charge to Attorney David Rosenfeld’s offices in California rather than Local 872’s offices in Nevada. On March 4, 2022, the General Counsel, through the Regional Director for Region 28, issued a Consolidated Complaint in these cases. (GC Exh. 1(c).)2 It alleges, in pertinent part, that from about April 2, 2020, to a date unknown to the General Counsel, Local 872 received assistance and support from joint employers TV Transport and Ascent Works by: (a) maintaining an arrange- ment requiring that employees employed by TV Transport and Ascent Works at Allegiant Stadium be members of Local 872 as a condition of their employment; and (b) accepting union mem- bership dues from TV Transport and Ascent Works for employ- ees employed by TV Transport and Ascent Works at Allegiant Stadium, which dues were not deducted from the pay of those employees, in violation of Section 8(b)(1)(A) of the Act. It fur- ther alleges that by maintaining the arrangement requiring union membership as a condition of employment, Local 872 has caused TV Transport and Ascent Works to encourage its employees to join Local 872, in violation of Section 8(b)(2) of the Act. On March 16, 2022, Local 872 filed its Answer denying these alle- gations and raising various affirmative defenses. (GC Exh. 1(e).)3 For the reasons discussed below, I conclude the charge against 2 Initially, the Consolidated Complaint alleged, in part, that from about February 4, 2020, to a date unknown to the General Counsel, TV Transport and Ascent Works gave assistance and support to Local 872 by: (a) requiring employees of TV Transport and Ascent Works to be members of Local 872 as a condition of their employment; and (b) pay- ing Local 872 membership dues on behalf of employees of TV Transport and Ascent Works without deducting such dues from the pay of employ- ees. Andreas Olson later executed an Informal Settlement Agreement on behalf of TV Transport and Ascent Works to resolve Cases 28–CA– 263955 and 28–CA–266995. (GC Exh. 26.) The Regional Director ap- proved the Informal Settlement and severed Cases 28-CA-263955 and 28–CA–266995 from the Consolidated Complaint. Only the allegations from Case 28–CB–267014 remain at issue. (GC Exh. 1(l).) 3 At the start of the hearing, the General Counsel moved to amend the Consolidated Complaint to allege that, at all material times, Attorney Rosenfeld, as unnamed counsel, was a statutory supervisor and agent of Local 872. (GC Exh. 2.) The General Counsel explained the purpose of the amendment was to establish timely service of the charge on Local 872 by its service on Rosenfeld. (Tr. 12–13.) I denied the motion at the hearing and reaffirm that ruling here. Section 102.17 of the Board’s Rules gives judges wide discretion to grant or deny motions to amend complaints. The Board has held judges should evaluate: (1) whether there was surprise or lack of notice, (2) whether there was a valid excuse for the delay in moving to amend, and (3) whether the matter was fully litigated. Rogan Bros. Sanitation, Inc., 362 NLRB 547, 549 fn. 8 (2015), enfd. 651 Fed. Appx. 34 (2d Cir. 2016). For at least a year prior, the General Counsel knew that timely service of the charge was at issue. In its Answer, Local 872 (through Rosenfeld) denied it received timely service and affirmatively alleged that the alle- gations against it were time-barred. Rather than amending the Consoli- dated Complaint at that time, the General Counsel waited 11 months— and during the week prior to the hearing—to first notify Local 872 of the intent to amend. This notice came as a surprise to Local 872, and Rosen- feld stated that, if granted, Local 872 likely would need to an adjourn- ment to determine whether to retain new counsel in the event he had to Local 872 was untimely under Section 10(b) of the Act. Outcalt had clear and unequivocal notice of the alleged violations by February 4, 2020, but he did not file the charge until September 24, 2020, nearly 8 months later. The General Counsel and Charging Party attempt to cure the belatedness issue by assert- ing, without evidence, that the alleged 5 violations continued on or after April 2, 2020. I reject those assertions and recommend dismissing the remaining allegations. FINDINGS OF FACT Jurisdiction and Labor Organization Status TV Transport has been a corporation with an office and place of business in Las Vegas, Nevada, and has been engaged in ware- housing, transportation, fabrication, and installation services. During the 12-month period ending August 3, 2020, TV Transport, in conducting its operations, purchased and received at its Las Vegas, Nevada facility goods valued in excess of $50,000 directly from points outside the State of Nevada. Local 872 admits, and I find, that at all material times to the allegations at issue TV Transport has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. (GC Exh. 1(c) and (e).) Kristina Villardi is the Director of Op- erations of TV Transport. Ascent Works has been a limited liability company with an testify. More significantly, the General Counsel has offered no excuse or explanation for the delay. Although I denied the motion, I allowed the parties to present evi- dence regarding Rosenfeld’s status. The General Counsel offered two exhibits, which were placed in the Rejected Exhibits file. The first ex- hibit was an email exchange between the Region and Rosenfeld between October 5–19, 2020, in which the Region emailed a copy of the charge to Rosenfeld, and he responded by indicating that service on him was not timely service (Rej. GC Exh. 3.) The second exhibit was an email ex- change between Local 872 Field Agent Rogelio Gonzalez and Andreas Olson on March 8, 2022, in which Gonzalez identified Rosenfeld as Lo- cal 872’s counsel. (Rej. GC Exh. 4.) The General Counsel also elicited testimony from Gonzalez that Rosenfeld previously represented Local 872 at unspecified hearings on unspecified dates. The Board has held timely service of a charge on a respondent’s at- torney may be timely service on respondent. See generally, Int’l Union of Elec., Elec., Salaried, Mach. & Furniture Workers (Paramax Systems Corp.), 311 NLRB 1031, 1054-55 (1993); Pasco Packing Co., 115 NLRB 437, 438 (1956). But that presupposes they have been designated as attorney as of the time of service. Here, the General Counsel presented no evidence Rosenfeld was Local 872’s attorney when the Region sent him the charge. Contrary to the General Counsel’s assertions, the Octo- ber 2020 emails contain no assertion or acknowledgement that Rosen- field was Local 872’s attorney. In Buckeye Plastic Molding, 299 NLRB 1053 (1990), the Board held the failure to timely serve a charge on a respondent will be cured by timely service of a complaint, within the Section 10(b) period, on the respondent or its attorney, absent a showing that respondent is prejudiced thereby. The Consolidated Complaint was not served on Rosenfeld or Local 872 until March 2022, nearly 17 months after the charge was filed. See Dun & Bradstreet Software Servs., supra fn. 1 (dismissing complaint served outside 6 months after alleged violation). Notwithstanding the above, even if I granted the General Counsel’s motion and found Rosenfeld to be Local 872’s attorney/agent at the time of service, I find, for the reasons stated below, the charge at issue was untimely. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 872 (TV TRANSPORT) 3 office and place of business in Coeur D’ Alene, Idaho, and has been engaged in the design and installation of atrium cladding and work platform nets. During the 12-month period ending Au- gust 3, 2020, Ascent Works, in conducting its operations, per- formed services valued in excess of $50,000 in States other than the State of Idaho. At all material times, Laborers Local 872 ad- mits, and I find, Ascent Works has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. As stated, Andreas Olson is the owner/operator and agent of Ascent Works.4 Local 872 admits, and I find, it has been a labor organization within the meaning of Section 2(5) of the Act. At all material times, Rogelio Gonzalez held the position of Field Agent and has been an agent of Local 872 within the meaning of Section 2(13) of the Act. Alleged Unfair Labor Practices A. Background Allegiant Stadium is the home of the Las Vegas Raiders. Its construction was governed by a Project Labor Agreement. (Jt. Exh. 1.) Local 872 was party to the Project Labor Agreement. It also was party to a Master Agreement with the Nevada Con- tractors Association covering construction in the Las Vegas area. (Jt. Exh. 2.) Vector Foiltec was the contractor responsible for installing the roof over the bowl to Allegiant Stadium. Before that work could begin, a specialized netting system had to be in- stalled to operate as a type of scaffolding/fall protection system. Olson, who previously worked for Vector Foiltec, brokered a deal between his former employer and TV Transport for the lat- ter to install the netting system. This is highly specialized work, and it is difficult to find qualified individuals who are able to perform it. TV Transport and Ascent Works entered an arrange- ment where Olson would recruit, train, and oversee the employ- ees TV Transport hired to be part of the installation crew. (Tr. 193–197.) From his prior experience, Olson believed that contractors on the project had to be signatory to a contract with a trade union, and their employees had to be members of that union, so he con- tacted Local 872. (Tr. 260-263.) On October 7, 2019, TV Transport, through Kristina Villardi agreed to be bound to the Master Agreement for the Allegiant Stadium project only. (Jt. Exh. 4.)5 In the fall 2019, Olson began recruiting employees and com- municating with Local 872.6 By November 2019, Olson re- cruited Tyler Anderson, Tyson Harvey, Dileep Bobba, Joseph 4 The Consolidated Complaint alleges that TV Transport and Ascent Works were joint employers under the Act. I find it unnecessary to de- termine joint employer status because I conclude Olson was, at all mate- rial times, an agent of both companies and his conduct was attributable to both. As described below, Olson regularly communicated on behalf of TV Transport with members of the crew and Local 872 representa- tives. He made recommendations to Kristen Villardi regarding various employment matters, including hiring, disciplining and layoffs, which she followed without any independent investigation or determination. (Tr. 217–219; 276–279.) And, as stated, Olson recruited, trained, and generally oversaw the crew on behalf of TV Transport. 5 The record does not reflect what, if any, other work TV Transport performed on the Allegiant Stadium project. Way, and Joshua Wilson to work for TV Transport on the crew. He recommended that TV Transport hire them, and each was hired. On November 13, 2019, Olson brought the five men to Local 872’s offices where they completed paperwork to join the Union. (GC Exh. 17.) Then, using his personal credit card, Ol- son paid their dues for the next 3 months, as well as any initiation fees. (GC Exh. 16.) TV Transport later reimbursed Olson for those amounts. (Tr. 284.) The installation of the netting system was delayed until 2020. On January 16, 2020, Gonzalez emailed Villardi asking for a let- ter requesting the five men hired in November 2019 be sent to work on the Allegiant Stadium project, as well as verification that they each had completed the necessary trainings/certifica- tions. Later that morning, Olson emailed Gonzalez that he had 3 more new hires “to sign with [the Union]” and asked if Gon- zalez was available for them to come to Local 872’s office. (GC Exh. 17, pg. 2.) Gonzalez responded the 3 were welcome to come by and bring individual checks or money orders for $111. (GC Exh. 17, pg. 2.) Gonzalez also informed Olson that Ander- son, Harvey, Way, and Wilson needed to come in or send pay- ments for their monthly dues. Olson responded, “Oh my gosh. I paid the first 3 months for each, did we already clear 3 months? wow. Please, can I take care of those costs on Monday? They haven’t even started to work for me, which sucks. I’ll cover it if ok.” (GC Exh. 17, pg. 4.) Gonzalez replied “3 months cover, Nov-Jan 2020. So as of February each of your employees will need to pay $37 a month.” (GC Exh. 17, pg. 4.) B. January 18 Email from Olson to Outcalt In around January 2020,7 Olson began communicating with David Outcalt about joining the installation crew on the Allegi- ant Stadium project. On January 18, Olson emailed Outcalt the following: As discussed by phone, I’ve got rad work at the Raiders sta- dium for professional climbers. We’ll be installing nets ahead of the roof install team, for the installers to walk and perform work from. If you choose to join my team: - your base wage will be $36.55/hr. - your housing will be provided (I’m attempting to provide a separate room for each team-mate, but their [sic.] may be some need to share) - your travel will be provided or reimbursed for (we’ll dis- cuss this) 6 The General Counsel issued trial subpoenas duces tecum to Local 872 and its agents. (GC Exhs. 8 and 14.) Paragraph 2 of GC Exh. 14 sought documents, including, but not limited to, emails showing or de- scribing communications between Local 872 and TV Transport or As- cent Works related to union membership, union dues, and/or member- ship dues, for the period from February 2019 to the present. Olson ex- changed several emails with Gonzalez on these topics. Those emails were not produced by Local 872 pursuant to the subpoena. The General Counsel received them from and introduced them through Olson. Both he and Gonzalez were subject to examination and cross-examination about their contents. 7 Hereinafter, all dates refer to 2020, unless otherwise stated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 - you’ll temporarily join the laborer’s union for the duration of the project. … Expected Start, and Duration: The current expected start date is the 2nd week of February, but there is training required ahead of work, so you must mobilize sooner. The job will take approximately 2 -1/2 months, but is subject to less or more time according to the flow of work. You’ll have the opportunity to assist the roof install team with roof tasks, during my contract, and after we finish my scope. … (GC Exh. 19.) C. February 2 Email from Olson and Meeting at Local 872’s Offices On Sunday, February 2, Olson emailed Outcalt and other new hires with a schedule of events for the upcoming week. Under the heading “Union Sign-up, Tuesday, 12 pm,” Olson stated, “For those of you not signed with the laborers yet, meet me at the hall at 12pm, I’ll pay your initial dues, you’ll do the paper- work.” (GC Exh. 21.) Two days later, Olson and the new hires, including Outcalt, met at Local 872’s offices. The new hires completed the paperwork to join the Union. Olson again used his personal credit card to pay their Union dues through April 2020, as well as any initiation fees. He also paid the second round of Union dues for the four employees hired in November 2019 (Anderson, Harvey, Way, and Wilson; Bobba never began work on the project). (GC Exhs. 11, 13, and 22.) That day, Out- calt was given a receipt from Local 872 showing that the sum of $111 was paid for his monthly dues covering February through April 2020. (GC Exh. 6.) The receipt shows the payments were all made using a credit card, which the parties stipulated was Ol- son’s personal credit card. Outcalt confirmed that as of Febru- ary 4, he did not have any doubt as to what was being paid and by whom. (Tr. 121.) This was the last payment Olson made to Local 872 for employee dues or initiation fees. (Tr. 253; 265.) On February 24, Olson emailed Gonzalez that Michael Kemp had been hired to join the installation crew. Olson wrote, “Please, I’ll send him tomorrow to register. He’ll pay his initial fees, I’ll reimburse him.” (GC Exh. 24.) Kemp paid his own dues to Local 872 on March 2. (GC Exh. 12.) Olson testified that while he did not personally reimburse Kemp, he believes Kemp was reimbursed by TV Transport’s payroll department. (Tr. 245.) But he had no direct knowledge that ever occurred. 8 Later, Stephen Moeller was hired as a member of the crew. He paid his own dues on April 6. (GC Exh. 10.) There was no evidence presented surrounding why he joined Local 872, or whether he was reimbursed by TV Transport or Ascent Works, or any of its agents or representatives, for any amounts paid to Local 872. I told the parties that I was not going to receive Olson’s testimony about what he believed the reimbursement arrangement was because it was handled by TV Transport’s payroll de- partment, and he was not privy to what occurred. (Tr. 267.) The General Counsel did not call a witness from TV Transport to establish whether Moeller or any employee was reimbursed for dues or fees paid to Local 872. (Tr. 265–267.)8 D. Outcalt’s Email Exchange with Gonzalez On February 28, Outcalt emailed Gonzalez about some con- cerns he had about his pay on the project.9 He informed Gonza- lez that there were employees performing some of the same work and getting paid more. Outcalt wanted to know why this was happening. (GC Exh. 7.) Gonzalez responded that he would in- vestigate it. On March 3, Outcalt emailed Gonzalez that the in- dividuals he was referring to worked for a different company, and they told him that by signing up for the Union Outcalt and the others signed up for less than the prevailing wage and that was how TV Transport won the contract. Outcalt wrote that he thought it was strange that Olson signed the crew up for the Un- ion and paid all their Union dues seeing as how Nevada was a right-to-work state. Outcalt then waited for an explanation from Gonzalez. On March 8, Outcalt emailed Gonzalez stating, “Im going to conclude that the nonresponse to my inquiry … means the union I was forced to join, in the right to work state of NV, has some involvement in the wage suppression. If you could provide a copy of the PLA where it states I needed to be a union member in NV that would be appreciated.” (GC Exh. 7, pg. 1.) E. Outcalt’s Last Day and Completion of the Project Outcalt continued working on the Allegiant Stadium project until about March 18 when he was laid off. The other members of the crew continued to work through March, and a smaller con- tingent continued working through about April 20. (GC Exh. 25.) ANALYSIS A. Allegations The Consolidated Complaint alleges, in pertinent part, that from about April 2 to a date unknown to the General Counsel, Local 872 received assistance and support from joint employers TV Transport and Ascent Works by: (a) maintaining an arrange- ment requiring that employees employed by TV Transport and Ascent Works at Allegiant Stadium be members of Local 872 as a condition of their employment; and (b) accepting union mem- bership dues from TV Transport and Ascent Works for employ- ees employed by TV Transport and Ascent Works at Allegiant Stadium, which dues were not deducted from the pay of those employees, in violation of Section 8(b)(1)(A) of the Act. And by maintaining the arrangement requiring union membership as a condition of employment, Local 872 caused TV Transport and Ascent Works to encourage its employees to join Local 872, in violation of Section 8(b)(2) of the Act. Local 872 argues these 9 One of the General Counsel’s subpoenas duces tecum to Local 872 sought documents reflecting communication between Local 872’s agents and employees of TV Transport and/or Ascent Works covering union membership and dues. I conclude that request would encompass these email communications between Outcalt and Gonzalez. (GC Exh. 8, ¶5.) Local 872 did not produce the emails even though Gonzalez acknowl- edged he had them in his possession. The General Counsel introduced the emails through Outcalt, and both he and Gonzalez were subject to examination and cross examination regarding their contents. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 872 (TV TRANSPORT) 5 allegations are time-barred under Section 10(b) of the Act. I agree. B. Section 10(b) Section 10(b) states that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made …” See also Dun & Bradstreet Software Servs., 317 NLRB 84, 84– 85 (1995). The Section 10(b) period does not begin to run until the charging party has "clear and unequivocal notice” of the acts that constitute the alleged unfair labor practice. John Morrell & Co., 304 NLRB 896, 899 (1991) (internal citations omitted), enfd. 998 F.2d 7, 302 U.S. App. D.C. 389 (D.C. Cir. 1993); Al- lied Prod. Workers Union Local 12 (Northern Engraving Corp.), 337 NLRB 16 (2001). The charging party is deemed to be on notice when it has “knowledge of the facts necessary to support a ripe unfair labor practice.” Leach Corp., 312 NLRB 990, 991 (1993), enfd. 54 F.3d 802, 311 U.S. App. D.C. 398 (D.C. Cir. 1995). The notice may be actual or constructive, i.e., sufficient notice if the party should have become aware of a violation in the exercise of reasonable diligence. See Moeller Bros. Body Shop, 306 NLRB 191, 192 (1992). However, notice will not be found where there is a delay in filing as a result of conflicting signals or otherwise ambiguous conduct. A & L Underground, 302 NLRB 467, 469 (1991). The party raising Section 10(b) as an affirmative defense bears the burden of proof. See Chinese Am. Planning Council, 307 NLRB 410, 410 (1992), review de- nied mem. 990 F.2d 624 (2d Cir. 1993). In reviewing the evidence, I conclude that Outcalt had clear and unequivocal notice of the alleged violations at issue as of February 4. He knew from Olson’s January 18 email that he would be required to join Local 872, and he knew from Olson’s February 2 email that Olson intended to pay the crew’s initial Union dues. He then was present on February 4 when Olson paid his dues to Local 872, and he received a receipt that day from Local 872 showing that his dues had been paid through the end of April. Outcalt later confirmed these facts in his early March emails to Gonzalez. Outcalt filed his charge against TV Transport alleging unlawful assistance and support to a labor or- ganization on July 31. He did not file the corresponding charge against Local 872 until September 24, even though he had notice of the alleged violations nearly 8 months earlier. Attempting to avoid dismissal based on untimeliness, the Gen- eral Counsel alleges in the Consolidated Complaint that the vio- lations by Local 872 occurred on or after April 2, a date that fit within the 6-month period prior to the filing of the charge. The General Counsel and Charging Party argue that because Olson required crew members to join and remain members of, and he paid their dues to, Local 872 through at least the end of April, the violations were continuing at least until that date. In Inter- national Machinists Local Lodge 1424 (Bryan Mfg. Co.) v. 10 The Charging Party cites to Relco Locomotives, 359 NLRB 1145, 1160 (2013), and Communication Workers of America, 359 NLRB 1136, 1140 (2013), in which the Board held the maintenance of an unlawful rule is a continuing violation even if was first implemented outside the Section 10(b) period. The Charging Party argues that because Local 872 maintained a “rule” requiring membership while working on the NLRB, 362 U.S. 411 (1960), an employer and a union entered into a collective agreement containing a union security clause at a time when the union did not represent a majority of the em- ployees in the unit. More than six months after the execution of the agreement, charges were filed alleging the continued en- forcement of the union security clause violated the Act. The Board found the charge was not precluded by Section 10(b) and that continued enforcement of the clause violated the Act. The Supreme Court disagreed and held “the entire foundation of the unfair labor practice charged was the [u]nion’s time-barred lack of majority status when the original collective bargaining agree- ment was signed. In the absence of that fact enforcement of this otherwise valid union security clause was wholly benign.” 362 U.S. at 412 (footnote omitted). Put another way, “if the Section 10(b) proviso is to be given effect, the enforcement, as distin- guished from the execution, of such an agreement as this consti- tutes a suable unfair labor practice only for six months following the making of the agreement.” 362 U.S. at 423 (footnote omit- ted). To the extent there was an agreement between TV Transport and/or Ascent Works and Local 872 regarding Union membership and payment of dues, it was reached or imple- mented well before April 2, because Olson began having crew members join Local 872, and he began paying their dues, starting in November 2019, and continuing in early February 2020. The Board has found a continuing violation when a party to an unlawful agreement reached outside the Section 10(b) period reaffirms or seeks to enforce that agreement during the Section 10(b) period. See e.g., Int’l Brotherhood of Teamsters, Local 251 (Material Sand & Stone Corp.), 356 NLRB 1061 (2011) (charge over efforts to enforce hot cargo agreement reached outside the Section 10(b) period within the Section 10(b) period held timely); Iron Workers (Southwestern Materials), 328 NLRB 934, 936 (1999) (charge over filing for summary judgement to enforce previously entered into hot cargo agreement found timely; General Truck Drivers Local 467 (Mike Sullivan & As- soc., Inc), 265 NLRB 1679, 1681 (1982), enfd. mem.723 F.2d 916 (9th Cir. 1983) (same). Here, there was no reaffirmation or attempt to maintain or enforce the alleged unlawful arrangement on or after April 2.10 The General Counsel has presented no ev- idence that any employee was required to join or maintain mem- bership in Local 872 on or after April 2, and there is no evidence that TV Transport or Ascent Works, or any of their agents, paid or reimbursed employees for dues or initiation fees to Local 872 on or after April 2. The last payment Olson made to Local 872 was on February 4. Although Olson believed TV Transport may have reimbursed employees for fees or dues paid to Local 872 after that date, he had no direct knowledge and there was no ev- idence presented that TV Transport or Ascent Works, or any of its agents, paid or reimbursed employees for fees or dues paid to Local 872 on or after April 2. I, therefore, decline to find a Allegiant Stadium project, the alleged violations are continuing. I reject this argument. Olson believed from his past experiences that the crew had to join Local 872 and pay dues before they could work on the pro- ject. His (mis)understanding, which was never confirmed or adopted by Local 872, does not amount to the maintenance of a rule, particularly not on and after April 2. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 continuing violation.11 Accordingly, I conclude the charge and the related complaint allegations against Local 872 are untimely under Section 10(b). C. Subpoena Noncompliance and Requested Sanction Rather than present evidence of a violation on or after April 2, the General Counsel attempts to prevail by arguing for an ad- verse inference based on Local 872’s failure to fully comply with the General Counsel’s subpoenas duces tecum.12 The Board has held the judge, in the first instance, has the authority and discre- tion to determine whether and what sanctions to impose for sub- poena non-compliance, including permitting the party seeking production to use secondary evidence, precluding the noncom- plying party from rebutting that evidence or cross-examining witnesses about it, and drawing adverse inferences against the noncomplying party. Shamrock Foods Co., 366 NLRB No. 117, slip op. at 1 fn. 1 and slip op. at 15-16 fn. 29 (2018), enfd. 779 Fed. Appx. 752, 754 (unpub.) (D.C. Cir. 2019) (quoting McAl- lister Towing & Transp. Co., 341 NLRB 394, 396-397 (2004), enfd. 156 F.Appx. 386 (2d Cir. 2005)); International Metal Co., 286 NLRB 1106, 1112 fn. 11 (1986). The Board has held the sanctions must be proportionate to the non-compliance. See, e.g., Sisters Camelot, 363 NLRB 162, 169–170 (2015) (denying dis- criminatee reinstatement and backpay for failing to fully comply with respondent’s subpoena found disproportionate); Teamsters Local 917 (Peerless Importers), 345 NLRB 1010, 1011 (2005) (dismissing complaint over charging party's refusal to provide document in response to respondent’s subpoena without a pro- tective order found disproportionate). The burden of establishing noncompliance lies with the party that issued the subpoena. See R.L. Polk & Co., 313 NLRB 1069, 1070 (1994), affd. mem. 74 F.3d 1240 (6th Cir. 1996). The General Counsel has established that Local 872 failed to fully comply with the subpoenas when it failed to produce the March 2020 email exchange between Outcalt and Gonzalez in which Outcalt stated he had been required by Olson to join Local 872, and that Olson had paid his dues. These documents were covered by the General Counsel’s subpoenas and were in Local 872 possession, but they were not produced. They were received into evidence through Outcalt. As a sanction, the General Coun- sel requested that Local 872’s counsel be barred from cross- examining Outcalt about the emails. After listening to argu- ments, I denied the General Counsel’s request, concluding, at that time, that Local 872’s failure to produce the emails was in- advertent. Respondent’s counsel, however, did not cross- 11 The Consolidated Complaint alleges that from about February 4, to a date unknown to the General Counsel, TV Transport and Ascent Works gave assistance and support to Local 872 by: (a) requiring employees of TV Transport and Ascent Works to be members of Local 872 as a con- dition of their employment; and (b) paying Local 872 membership dues on behalf of employees of TV Transport and Ascent Works without de- ducting such dues from the pay of employees, but then alleges Local 872 committed the corresponding violations only since April 2. The General Counsel fails to explain or reconcile this glaring discrepancy. If the Gen- eral Counsel believed Outcalt’s charge was timely, and that Local 872’s alleged violations were continuing, the timeframes should have been the same. And, frankly, it is disingenuous for the General Counsel to argue they should not, and they only go to show that the specific allegations examine Outcalt about those emails. The General Counsel also has established that Local 872 failed to comply when it did not produce the emails Gonzalez and Olson exchanged between November 2019 and early March 2020, in which they discussed signing the crew members up to join the Union and the payment of their dues and fees. Again, these documents were covered by the General Counsel’s subpoe- nas, and in Local 872’s possession, but were not produced by Local 872. It was apparent from the documents, and the General Counsel’s questioning of Gonzalez regarding his search when responding to the subpoenas, that Local 872 had not conducted a diligent search and produced all responsive documents, despite my earlier instructions that it do so. Although these documents should have been produced by Local 872, they were introduced through Olson, and he and Rodriquez were questioned about them. (e.g., GC Exhs. 17, 18, 19, 20, 21, 23, 24.) Hence, there was no prejudice to the General Counsel as a result of Local 872’s non-compliance. At the conclusion of her case-in-chief, the General Counsel argued that Local 872’s repeated failure to fully comply with the subpoenas warranted an adverse inference, specifically, that I conclude if Local 872 had fully complied with the General Coun- sel’s subpoenas there would have been documents produced showing an arrangement between Local 872 and TV Transport and/or Ascent Works requiring Union membership during the Section 10(b) period (which presumable began on April 2). I denied the request at the hearing and reaffirm that ruling now. Under the circumstances, I find the sanction the General Counsel seeks to be excessive. The General Counsel has pre- sented no evidence that employees were required to join or main- tain membership in Local 872, or that TV Transport or Ascent Works, or any of its agents, paid or reimbursed crew members for their dues or fees, or otherwise provided unlawful assistance and support, on or after April 2. The Board has held it is dispro- portionate to find a violation solely based on an adverse infer- ence. See Quicken Loans, Inc., 367 NLRB No. 112, slip op. at 2 (2016) (judge erred by relying on an impermissible adverse in- ference, drawn from the failure of a witness to testify, in order to provide the missing "evidence" needed to prove the General Counsel's case). The General Counsel also has not identified what evidence it believes exists, and is in Local 872’s posses- sion, that would help prove the alleged violations during that timeframe. Olson testified his last payment to Local 872 for dues or fees was in early February. The documented communications between Olson and Local 872 ended in March. He stated TV against Local 872 were not based on the evidence but rather on a flawed effort to avoid dismissal. 12 Respondent filed petitions to revoke the General Counsel’s subpoe- nas duces tecum. At the start of the hearing and later, I asked whether rulings were necessary, or if the parties had resolved the matter. Attor- ney Rosenfeld indicated that no ruling was necessary. Thereafter, the General Counsel sought at multiple points during the hearing for Rosen- feld to confirm that Local 872 had produced all responsive documents. Rosenfeld prevaricated and at points expressed frustration and threatened to leave the hearing over the matter. While Rosenfeld’s conduct was below the standard one would expect from someone of his skill and ex- perience, I conclude it fell short of contumacious behavior. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 872 (TV TRANSPORT) 7 Transport may have reimbursed employees for dues or fees paid after that date, but he had no first-hand knowledge If TV Transport reimbursed employees on or after April 2, that infor- mation would be in the possession of TV Transport, not Local 872. CONCLUSIONS OF LAW 1. TV Transport and Ascent Works, LLC are both employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Laborers’ International Union of North America, Local 872 is a labor organization within the meaning of Section 2(5) of the Act. 3. Local 872 did not violate the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended.13 ORDER The Consolidated Complaint is dismissed in its entirety. Dated, Washington, D.C., April 7, 2023 13 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions and recommended 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.