After that, the Commission established their ultimate decision for the a completely independent legal idea.\302\ “Which [was] perhaps not an instance the spot where the initial criticism are couched in the large generalities however, after that is attempted for the specific concept one to sooner or later warranted [the fresh new Commission’s] finding[s].” \303\ In fact, “[c]ounsel for Bendix particularly questioned both Reading Examiner and the [Government’s] Counsel on principle upon which possible might possibly be attempted.” Bodies the advice expressly limited the fresh courtroom concepts in question: “[r]epeated comments of the guidance, witnesses, and [Hearing] Checker showed that people believed [these] become truly the only question[s]” when you look at the contention.\304\ At the end of brand new hearing, Bodies counsel registered a last short-term to your Fee, and this excluded people mention of alternative court theories.\305\ “Bendix’s case was wishing and you can demonstrated responding to particular enumerated ideas. . . . The witnesses have been asked and you will get across-checked-out with regards to these issues. This new documentary evidence is keyed to those concepts.” \306\ Once the “additional defenses and you may evidences might possibly be used in defending” new Commission’s solution courtroom concept, Bendix try entitled to good remanded hearing.\307\
For the Bendix, Government counsel showed about three concepts out-of illegality, each denied of the Reading Examiner
Furthermore, the courtroom remanded where they available on feedback that the NLRB didn’t afford the respondent a full and you can fair opportunity to litigate the issues comprising the final choice.\308\ Immediately following an administrative laws judge held a paying attention towards costs established from the Board’s problem, the new Board used new ALJ’s decision, but performed therefore considering an “alter-ego” theory off business accountability.\309\ Whilst the NLRB found “adequate link with the brand new criticism getting Respondent to anticipate” the newest newly-articulated court theory, the newest Legal off Appeals concluded that brand new respondent was not accorded their owed techniques liberties as to the changes ego allege.\310\ “Respondent try clueless that the [ ] changes pride allege grew up regarding continuing. Even throughout the fresh new evidentiary reading, Respondent gotten zero see of one’s point out that [its subsidiary] is an adjust pride[,]” and you will “[t]he ALJ never ever advised the brand new activities he do think an change ego allege.” \311\ As the respondent never obtained find of change ego allege through the pleadings, the latest Legal out of Appeals concluded that first time this new respondent are advised you to definitely an
Within the review by Legal away from Appeals, this new NLRB argued your transform pride claim is totally and you can pretty litigated because “considerable facts connected to” this new allege are demonstrated and you can challenged on reading.\313\ But not, the fresh new Courtroom out of Is attractive indexed that “the simple demonstration from proof crucial that you a choice claim really does not match the specifications you to any allege in the variance from the ailment become ‘fully and you will rather litigated’ in order for the brand new Panel to determine the issue in the place of transgressing [Respondent’s] owed procedure rights.” \314\
\314\ Id. (inner citations omitted). See including Soule Glass and you will Glazing Co. v. 2d 1055 (first Cir. 1981) (noting one “even though such as for instance a quarrel checked clearly on Standard Counsel’s post-hearing short term, such as for example post-hoc characterizations of your circumstances wouldn’t be related inside the determining if the boss had observe of your own point and you can an important chance to reduce the chances of they within hearing”).
NLRB, 652 F
Considering the generous evidence of Dr. Pettinger’s violation from rules managing the shipping of oxycodone lower than Factor Four (and therefore helping to make something Five studies superfluous), given Dr. Pettinger’s inability to help you rebut instabang the fresh Government’s prima-facie circumstances (just like the might be addressed below), and you may considering the Government’s inability to reveal prior to the fresh new hearing its intent in order to believe in something Four study, I cannot strongly recommend relying on something Four investigation, whilst an alternative idea of the situation.