[1996] OLRB REP. SEPTEMBER/OCTOBER 843
0333-96-U; 0377-96-U A Group of Employees of J.P. Murphy Inc., Applicants v. Retail Wholesale Canada Canadian Service Sector, Division of the United Steelworkers of America, Local 448, Responding Party v. J.P. Murphy Inc., Intervenor; United Steelworkers of America, Applicant v. J.P. Murphy Inc., Responding Party v. Nancy Milano et al, Intervenor
BEFORE: Christopher Albertyn, Vice-Chair, and Board Members W H. Wightman and Pauline R. Seville.
APPEARANCES: C. I. Abbass and Chantal Couture for Nancy Milano et al.; B. Shell, P Turtle and R. Barron for United Steelworkers of America; A.P. Tarasuk, Allison Whyte, S. Murphy and J.P. Murphy for J.P. Murphy Inc.
DECISION OF THE BOARD; October 16, 1996
The title of this proceeding in Board File No. 0333-96-U is amended to describe the responding party as: "Retail Wholesale Canada Canadian Service Sector, Division of the United Steelworkers of America, Local 448".
The union claims that the company is bargaining in bad faith by refusing to sign a collective agreement negotiated by them. It seeks an order under section 96 of the Labour Relations Act, 1995 requiring the company's signature of the agreement, alternatively an order that the agreement reached is binding upon the parties. The company relies upon allegations made by the group of employees against the union as the basis for its refusal to sign the agreement. The group of employees contend that the union's ballot of the employees of the company on April 10, 1996 was not valid and that it did not provide the union with the ratification vote it required to conclude the collective agreement with the company. Those are the issues in these applications. The evidence to be heard in the case is germane to both applications so, at the request of the parties, the applications have been consolidated and they will be heard together. Several days have been set aside for the hearing of evidence and argument, in December 1996 and January 1997.
At the start of the hearing an issue arose which this decision addresses. An oral ruling was made at the time and this decision somewhat reconsiders and alters, and somewhat amplifies, that ruling. The company's counsel sought to make use of a court reporter during the course of the hearing. The court reporter is an official, registered court reporter and she brought tape recording and stenographic equipment with her to the hearing with the intention of making an accurate recording of all that is to be said in the proceedings. The union's counsel objected to her presence and sought an order that she be excluded, alternatively that the union be provided with a copy of a transcript of her record at the cost of the company. The company's counsel contended that he has had no difficulty being accompanied and assisted by a court reporter in the past in Board and other tribunal hearings and that he needed her services to take notes on his behalf. He referred to previous rulings by the Board and by an adjudicator under the Employment Standards Act which permitted him to proceed in the manner he intended, despite objection. He referred to the work of the court reporter as being the taking of his private notes of the proceedings for his personal use in the preparation and conduct of his client's case.
The company's counsel was willing to undertake that the court reporter would not interfere in any manner in the proceedings and, since her recording would not be the Board's official record of the proceedings, there would be no interruption if the reporter missed anything said. Counsel suggested that if he were obliged to furnish a copy of the transcript of the proceedings to the union's counsel, then the transcript should be treated as the official record of the hearing.
The union's counsel argued that the production of a verbatim transcript of the proceedings by the court reporter diminished the Board's control over the proceedings. For that reason he suggested the company's counsel should not be permitted the services of a court reporter. Her record of what is said is necessarily more authentic, definitive and reliable than the notes of any other person, including those of the Board. The court reporter's record and transcription of the evidence are really not "notes" at all, but a verbatim record of what was said. The transcription necessarily has weight, even if the Board treats its own notes as the official record, as it has always done. One party having a 'record' which is doubtless more accurate than any other, will loom over the Board's record of the proceedings as a constant challenge to the Board's control over, and regulation of, the proceedings.
The union's counsel suggested too that he would be prejudiced in the conduct of his case by the company's counsel being in possession of a more accurate verbatim record of the proceedings than he was capable of producing through his own notes, or through those of his assistant. The company's counsel responded by suggesting that the union could readily engage its own court reporter and its counsel would then be as well placed as he, in his role as the company's counsel, had chosen to be. The issue is a matter of resource allocation - if a party is willing to incur the cost of using a court reporter then it will have the benefit of a verbatim transcript, if not then that party should be content with its own attenuated or abbreviated notes. Counsel suggested that the taking of a complete recording was not as much a priority for the union as it was for the company, otherwise it would itself have engaged the services of a court reporter.
At the hearing a majority of this panel (Board Member Wightman dissenting) ruled in a manner which substantially accepted the union's submissions. One option available to the Board was to prevent the company's counsel from making use of a court reporter at all. Its merit is to prevent the proceedings of the Board from becoming too formalized, too court-like and hide-bound. The Board is a specialist tribunal which is meant to be readily accessible to workers and employers alike and procedural rulings which increase legalism and formality should be discouraged. This option was weighed against the prejudice to the company's counsel in limiting the manner in which he prefers to conduct his client's case and we resolved that our concerns for the increased formality and juridification of the proceedings were outweighed by our concern that the company not be prejudiced in the conduct of its case in the manner it considers optimal. We therefore resolved to permit the company's counsel to make use of the court reporter to keep a record on his behalf.
We then considered what the status should be of the record kept by the court reporter engaged by the company. The company's counsel suggested that if it were obliged to give a copy of the court reporter's transcript to the union's counsel, then that transcript should be treated as being the official record of the proceedings. We were unanimously of the opinion that there are compelling reasons why the Board's usual practice should not alter. The official record of the Board is contained in the pleadings and in the Board's ultimate decision on the merits. The Board does not have regard to an extraneous record for the reasons that the Board then retains control over the conduct of the proceedings and it does not pass any aspect of that control to an extraneous third party (the court reporter); the relative informality of Board proceedings is retained; there are no interruptions during the hearing of the case to ensure that the court reporter's record is complete and accurate; the costs of engaging the services of an official court reporter are not incurred and there is no issue as to who should pay for those costs; there is no delay occasioned by the need to have the court proceedings transcribed. Hence part of our ruling was to the effect that the record kept by the company's court reporter was not to be an ofticial record and that it will have no status in these proceedings.
We then addressed the union's alternative request. It sought an order that its counsel be provided with a copy of a transcript of the proceedings produced by the court reporter for the company's counsel. Subject to the conditions mentioned below, a majority of the panel (Board Member Wightman dissenting) ruled that that request ought to be granted. We made that ruling partly because, notwithstanding the court reporter's record having no standing as the Board's record, that did not render it a worthless document for all purposes. The references by the company's counsel to the gathering of 'private notes' and 'personal notes' were somewhat coy and euphemistic descriptions of the work done by a court reporter. The production carried out by a court reporter is much more than merely the gathering of personal' or 'private' notes. A court reporter's record purports to be a careful, comprehensive, verbatim and accurate record of all that is said during the course of a hearing. It makes a claim to authenticity, despite the company's counsel's endeavours to describe its value far more modestly. The claim to authenticity is somewhat undermined by our ruling that the court reporter may not interrupt the proceedings to correct any error or complete any omission, but the claim is not thereby vitiated altogether.
We considered too the balance of convenience as between the grant and the refusal of the union's request. We were satisfied that the prejudice to the union being deprived of a copy of the transcript outweighed any prejudice to the company in being obliged to provide a copy of the transcript to the union at the union's expense. The company will not be put to any greater cost as a consequence of our ruling and it will not be prejudiced by our order.
For these reasons we ruled that the company must provide the union with a copy of the transcript of evidence produced by the court reporter, subject to the certain conditions.
Upon reconsideration of the matter following the hearing, the Board has decided to amend its previous oral ruling in the following respects. To the extent that the transcript is purely an aidem6moire and no reference whatsoever will be made to it at the hearing, either during the course of evidence or in argument, then it is not necessary for the company's counsel to provide a copy to any other party. However, should the transcript be the focus for any discussion, comment, reference or submission, and not just an aide-memoire to the company's counsel, then copies thereof should be made available to the other parties and to the Board, just as any relevant document would need to be produced for the Board and the other parties.
The business which employs the court reporter charges an hourly rate for the time she will spend at the hearing and then it charges an amount for the first copy of a transcription of the record. It charges a lesser amount for each subsequent copy. It retains copyright over the transcriptions it produces.
In our order we do not require the company to make use of a court reporter or to produce a transcript of the court reporter's recording of the evidence and argument. That is a matter to be decided by the company and its counsel. If a transcript of the proceedings, or any portion thereof, is produced and referred to in the hearing then, firstly, the company's counsel must give prior notification thereof to the union's counsel in writing and furnish the union with a copy of whatever part of the court reporter's record is reduced to writing and transcribed. The union will pay for that copy and it will do so at the court reporter's rate for additional copies of the transcript. Secondly, the company's counsel must, at the company's expense, furnish the Board with three copies of the transcript for the members of the panel.
In the result we make the following ruling:
(a) the company's counsel is entitled to make use of a court reporter and of her recording equipment during the course of the hearing;
(b) the activities of the court reporter will not in any manner impede, delay, hinder or interrupt the proceedings;
(c) should the company's counsel intend to refer to the written transcript of the proceedings, or any portion thereof in the hearing, then:
i. that transcript shall not be a record of these proceedings;
ii. the company's counsel shall in writing notify counsel for the union and counsel for the group of employees of the extent of the transcription, and his intention to make reference to the transcript;
iii. the union and/or the group of employees may then require the company's counsel to obtain an additional copy or copies of the transcript produced for their use, provided that the cost of such additional copy or copies shall be paid by the party making the request;
iv. the request for a copy of the transcript from the company's counsel may be made at any stage after receipt of the notification referred to in sub-paragraph ii above;
v. reference may not be made to the transcription until the other parties have had a reasonable opportunity to obtain a copy thereof; and
vi. the company's counsel shall at the company's cost provide three copies of the transcript to the Board prior to any reference thereto.