Oregon Advisory Opinions June 27, 1955: OAG 55-56 (June 27, 1955)
Collection: Oregon Attorney General Opinions
Docket: OAG 55-56
Date: June 27, 1955
Advisory Opinion Text
OAG 55-56.
Division of Labor Elections
This is in response to your letter of May 27, 1955, in which you inquired as to the propriety of using a mechanical recorder in the recording of testimony of witnesses at labor examiner hearings.
ORS 662.710 provides that upon a hearing being held after a complaint is filed:
"A transcript of the testimony taken by the examiner shall be made and filed in the office of the examiner. * * *"
ORS 662.720 provides that after a hearing and the entry of the examiner's order any person aggrieved by such order may obtain a review of the same by filing a written petition therefor in the circuit court. Said section then provides:
"* * * A copy of such petition shall forthwith be served upon the examiner who made the order and thereupon the aggrieved party shall file in the court a transcript of the entire record of the hearing before the examiner, including the pleadings and testimony upon which the order of the examiner was entered, and shall cause notice thereof to be served upon other interested parties to the hearing. Thereupon, the court shall have jurisdiction of the proceeding before the examiner and of the question determined therein and shall have power to make and enter upon the pleadings, testimony and proceedings set forth in such transcript a decree enforcing, modifying and enforcing as so modified, or setting aside the order of the examiner. * * *" (Emphasis supplied)
Nowhere in the statute is the manner of initial recording of testimony prescribed nor is the manner of recording testimony in courts adopted.
The historic function of and limitation upon the power of an administrative agency to make rules and regulations is the power of the agency to fill in administrative detail: 73 C.J.S., Public Administrative Bodies and Procedure, § 30. The legislature need not specify precisely how testimony should be recorded and transcribed. It has chosen merely to require that a transcript of testimony be made and filed and has given the labor examiner broad powers in the conduct of the hearing as stated in ORS 662.640, which provides:
"Subject to the requirements of ORS 662.650 concerning rules of evidence, the examiner shall prescribe rules and regulations to assure the interested persons a fair hearing upon the determination of the appropriate bargaining unit. A transcript of the testimony taken by the examiner shall be made and filed in the office of the examiner. * * *"
In promulgating a rule or regulation describing the manner of recording testimony the labor examiner should be guided by those methods approved and sanctioned by the legislature in the conduct of court proceedings.
In this respect, chapter 497, Oregon Laws 1955, amended ORS 8.340, 8.350 and 8.360 to permit the use of mechanical, electrical or electronic devices in making audio records of testimony when the same is used in connection with, and in addition to, the taking of testimony by shorthand notes or mechanical typing devices using paper tapes.
It is accordingly my opinion that the labor examiner may properly provide for the taking of testimony by any one or more of the recognized systems.
You next ask,
"Is it correct that the court accepts only a certification by a court reporter?"
The answer to this question is obviously in the negative. A court reporter is one who is appointed by the circuit court under ORS 8.310. There is nothing in the labor examiner's statute that requires the employment of a court reporter in the taking of testimony. To the contrary, ORS 662.700 authorizes the examiner, subject to the state civil service law, to employ and discharge clerks and other assistants as needed, fix their compensation and assign their duties.
It is the duty of the examiner under this section to employ such personnel as are competent to record and transscribe the testimony taken at hearings by any of the systems or combinations thereof prescribed by the examiner.
The certificate on the transcript of testimony should be executed by whatever person records and transcribes the testimony. Similarly, under ORS 662.720 a "transcript of the entire record of the hearing before the examiner, including the pleading and testimony" can only be certified to by the person having custody of the entire record, namely the labor examiner or the special examiner who held the hearing: ORS 662.700.