or a part of a riff that occurred back in two thousand and nine additionally there is a piece over here about dealing with an amendment that the general counsel tried to add to the case a new theory at the end of the case and we had  specific knowledge that the employer had as to his sympathies there was no evidence for example that the employer could overhear those conversations and watch what he did find was based on a couple of differences in  assumptions and there was a credited piece of testimony against a mistress of ours or a supervisor from a company where he had made a comment that was attributed to him that these individuals had been selected because he did meeting with you from that it was inferred that he was part of that group he was part of the  i believe was in the comment and then they assume because he had this knowledge that this would be the ultimate decision maker martinez i will say that in the record actually established that he did not attend any union meetings again we're not try that he had been disciplined twice in late two thousand and eight he received written for warning what is the evidence that that the decision was amazing they said there's no question he had poor attendance record but the problem is we ha we give all these records and general counsel showing all the offenders and performance and disciplinary records they had offered evidence and form of questioning from mr martinez about this individual mr hernandez having been late eight times in two thousand and eight there's no evidence and no evidence was put in the record again and everything was supply but he was disappointed for his attendance in two thousand and eight unlike mr ross was disciplined twice in general counsel's exhibit six and seven result so no evidence of mr hernandez in fact continue to be late into two thousand and nine obviously that's getting more toward the critical period when you're making a selection which happened in june of two thousand i m it was credited and it's on the record that he was late seven times including three times more than two and a half hours so if that's what the record is that was it what's the evidence that will martinez made his decision about mr rove haas that it was about his attendance he testified that if he made the  a couple of things the judge found that the ultimate decision maker mr martinez was not given his knowledge actually it was inferred to him that he was given this knowledge and his input from mr spargo so there's no evidence that he directly c you know we don't know what happened but we're going to say that you can have any credit evidence in the record we also have the evidence that's frankly pretty unique in one of these cases where at the time the decision was made and they went to  should have done more he should have done his own independent investigation and that was not the theory in the complaint or the one presented to the administrative law judge again if you have mr martinez certainly the piece that they're arguing that the construction and the conner decision these were decisions that said that where the government was trying to amend the complaint new theories after it happened at the board level they were trying to add new violations and they've argued that technically the hearing hasn't closed when they want to move to amend the complaint in practice and i think the record clearly reflects this you know we had rested the government had no rebuttal they made this argument to amend the complaint put forth you know we wanted to have additional opportunity to respond to this part of you know i don't part of what's been thrown back at us is you know we haven't established what we would have shown of course that kind of is still open that one i suppose the judge agreed with you and said well i'm going to reopen the hearing in your terms but where she said it wasn't close let's hear more part of it was very very clear if she complaint alleges to violations and then there's a hearing and a motion is made to amend the complaint to a third violation based on the evidence at the hearing if that motion is granted do you need our case is to say that that would be a due process violation under the circumstances yes what do you mean under these circumstances  you have two charges named in the complaint and during the course of the hearing there is testimony that causes the general counsel to move to amend the complaint to add a third alleged violation if that motion had been granted it your argument is on hearing it is not that that would be a violation of due process but rather that it would be a due process violation only if the record was closed and you had no opportunity to present evidence or is the argument that while you have no burden to show prejudice in effect you are arguing prejudice by saying you had know you were on aware of this conversation between the husband and wife had a little post candidly that's one trying to understand what it's one thing if you're charged with smoking given us an opportunity we may have asked for a continuance to prepare we may have done of the thanks for the time that it's raised the record for all intents and purposes his books were just use your argument look just because evidence think this course authority says as much and it gives us then the opportunity for pair different strategy again the government controlling the complaint having set this in motion it certainly would have been minimally fair when they had t is they thought they had a new theory for whatever reason where they just discovered got around to it would have less known as soon as possible which again when event at the end of day two of the three day hearing three consecutive days i'm not word one mentioned during our case in response but i want to be clear if i can hear the argument we were in the middle of the hearing on day two you know our whole strategy would have changed the center is so and you didn't understand how far your argument goes that's what i'm just trying to he had this conversation with his wife about this conversation in june and that she never mentioned anything about that which you know would have created major credibility or other problems begin without this pretrial discovery in this process we're notice issue but is it i just need to understand if it's a notice in an absolute sense or tenet we noticed is it notice before the would only be permissible if in this case the employer didn't object in other words the board's view of this and i'm not i just want to be clear here is the witness testified your witness is denied and question is well what more could happen so it's it's saying that it's noticed before hand and there can be no amendment without a violation of due process the other circuits have taken a slightly different tack and so counsel for the board distinguishes art pieces i saying factually distinguishable and that what our cases were talking about was what i call the apples and oranges type situation not a situation that is explored during the hearing thank you thank you questions the board didn't properly allow the general counsel to amend the complaint at the end of the hearing but before the close of the year and now the board can find a violation that isn't even alleged in the complaints as long as there is notice her out that's a big statement and i actually didn't cross examine her briefly about the telephone conversation and also presented as far as a cultural difference when there cross examination took place it wasn't part of the complaint it wasn't part of the charge right it wasn't part of the the company had notice that this was important and i'm suggesting that that's not that's not quite the case right that the company is charged with certain issues and the burden and the whole concept of due process is that's what we're going to be party claiming the injury which would hear people's back in company but as to notice the company knew that one that phone conversation would be an issue for other violations but also that it in the judge's decision at a minimum that those statements could be we're bound by it and just think of the implications of your  was confused by i was mean martinez's testimony and the implications of it they certainly drew conclusions from it i would say to you that if they were confused it was not proper for them to then draw conclusions from it what do you   that can be applied to existing established legal principles i don't think it is proper for them or to just substitute his beliefs or finding just because they may have a different feel about it  fight this piece about this june two thousand and nine conversation i think that kind of stands our objection and due process on its head we did inject the moment they came  up that we didn't subsequently take exception of one fact a factual piece that then got put in use for another reason doesn't convert into an unfair labor practice or a violation of the national labor relations act