DETROIT EDISON CO. v. NATIONAL LABOR RELATIONS BOARD
No. 77-968
Supreme Court of the United States
Argued November 6, 1978—Decided March 5, 1979
440 U.S. 301
Norton J. Come argued the cause for respondent. With him on the brief were Solicitor General McCree, Louis F. Claiborne, John S. Irving, Carl L. Taylor, and David S. Fishback.*
*Briefs of amici curiae urging reversal were filed by Bruce L. Montgomery for the American Psychological Assn.; by Thaddeus Holt, William J. Kilberg, and Lawrence Z. Lorber for the American Society for Personnel Administration et al.; and by William J. Rodgers and Stephen A. Bokat for the Chamber of Commerce of the United States.
Burt Pines, Cecil W. Marr, and John W. Witt filed a brief for the city of Los Angeles et al. as amici curiae.
MR. JUSTICE STEWART delivered the opinion of the Court.
The duty to bargain collectively, imposed upon an employer by
We granted certiorari to consider an important question of federal labor law. 435 U. S. 941. This is apparently the first case in which the Board has held that an employer‘s duty to provide relevant information to the employees’ bargaining representative includes the duty to disclose tests and test scores achieved by named employees in a statistically validated psychological aptitude testing program administered by the employer. Psychological aptitude testing is a widely used employee selection and promotion device in both private industry and government. Test secrecy is concededly critical to the validity of any such program, and confidentiality of scores is undeniably important to the examinees. The underlying question is whether the Board‘s order, enforced without modification by the Court of Appeals, adequately accommodated these concerns.
I
The petitioner, Detroit Edison Co. (hereinafter Company), is a public utility engaged in the generation and distribution of electric power in Michigan. Since about 1943, the Utility Workers Union of America, Local 223, AFL-CIO (Union) has represented certain of the Company‘s employees. At the time of the hearing in this case, one of the units represented by the Union was a unit of operating and maintenance employees at the Company‘s plant in Monroe, Mich. The Union was certified as the exclusive bargaining agent for employees in that unit in 1971, and it was agreed that these employees would be covered by a pre-existing collective-bargaining agreement, one of the provisions of which specified that promotions within a given unit were to be based on seniority “whenever reasonable qualifications and abilities of the employees being considered
The aptitude tests at issue were used by the Company to screen applicants for the job classification of “Instrument Man B.” An Instrument Man is responsible for installing, maintaining, repairing, calibrating, testing, and adjusting the powerplant instrumentation. The position of Instrument Man B, although at the lowest starting grade under the contract and usually requiring on-the-job training, was regarded by the Company as a critical job because it involved activities vital to the operation of the plant.
The Company has used aptitude tests as a means of predicting job performance since the late 1920‘s or early 1930‘s.3 In the late 1950‘s, the Company first began to use a set of standardized tests (test battery) as a predictor of performance on the Instrument Man B job. The battery, which had been “validated” for this job classification,4 consisted of the
In the late 1960‘s, the technical engineers responsible for the Company‘s instrumentation department complained that the test battery was not an accurate screening device. The Company‘s industrial psychologists, accordingly, performed a revalidation study of the tests. As a result, the Personnel Test was dropped, and the scoring system was changed. Instead of the former three-tier system, two scores were possible under the revised battery: “not recommended” and “acceptable.” The gross test score required for an “acceptable” rating was raised to 10.3, a figure somewhat lower than the former score required for a “recommended” but higher than the “acceptable” score used previously.
The Company administered the tests to applicants with the express commitment that each applicant‘s test score would remain confidential. Tests and test scores were kept in the offices of the Company‘s industrial psychologists who, as members of the American Psychological Association, deemed themselves ethically bound not to disclose test information to
order entered, EEOC v. Detroit Edison Co., 17 E. P. D. ¶ 8583 (ED Mich. 1978), notice of appeal filed, Aug. 24, 1978. The issues in the present unfair labor practice litigation are distinct, and nothing in this opinion, particularly use of such words as “valid” or “validate,” is to be understood as bearing in any way on possible Title VII questions. Cf. Albemarle Paper Co. v. Moody, 422 U. S. 405, 425-436.
The present dispute had its beginnings in 1971 when the Company invited bids from employees to fill six Instrument Man B openings at the Monroe plant. Ten Monroe unit employees applied. None received a score designated as “acceptable,” and all were on that basis rejected. The jobs were eventually filled by applicants from outside the Monroe plant bargaining unit.
The Union filed a grievance on behalf of the Monroe applicants, claiming that the new testing procedure was unfair and that the Company had bypassed senior employees in violation of the collective-bargaining agreement. The grievance was rejected by the Company at all levels, and the Union took it to arbitration. In preparation for the arbitration, the Union requested the Company to turn over various materials related to the Instrument Man B testing program. The Company furnished the Union with copies of test-validation studies performed by its industrial psychologists and with a report by an outside consultant on the Company‘s entire testing program. It refused, however, to release the actual test battery, the applicants’ test papers, and their scores,
The Union then filed with the Board the unfair labor practice charge involved in this case. The charge alleged that the information withheld by the Company was relevant and necessary to the arbitration of the grievance, “including the ascertainment of promotion criteria, the veracity of the scoring and grading of the examination and the testing procedures, and the job relatedness of the test(s) to the Instrument Man B classification.”
After filing the unfair labor practice charge, the Union asked the arbitrator to order the Company to furnish the materials at issue. He declined on the ground that he was without authority to do so. In view of the pendency of the charges before the Board, the parties proceeded with the arbitration on the express understanding that the Union could reopen the case should it ultimately prevail in its claims. During the course of the arbitration, however, the Company did disclose the raw scores of those who had taken the test, with the names of the examinees deleted. In addition, it provided the Union with sample questions indicative of the types of questions appearing on the test battery and with detailed information about its scoring procedures. It also offered to turn over the scores of any employee who would sign a waiver releasing the Company psychologist from his pledge of confidentiality. The Union declined to seek such releases.
The arbitrator‘s decision found that the Company was free under the collective agreement to establish minimum reasonable qualifications for the job of Instrument Man and to use aptitude tests as a measure of those qualifications; that the Instrument Man B test battery was a reliable and fair test in the sense that its administration and scoring had been standardized; and that the test had a “high degree of validity” as
Several months later the Board issued a complaint based on the Union‘s unfair labor practice charge. At the outset of the hearing before the Administrative Law Judge, the Company offered to turn over the test battery and answer sheets to an industrial psychologist selected by the Union for an independent evaluation, stating that disclosure to an intermediary obligated to preserve test secrecy would satisfy its concern that direct disclosure to the Union would inevitably result in dissemination of the questions. The Union rejected this compromise.
The Administrative Law Judge found that notwithstanding the conceded statistical validity of the test battery, the tests and scores would be of probable relevant help to the Union in the performance of its duties as collective-bargaining agent. He reasoned that the Union, having had no access to the tests, had been “deprived of any occasion to check the tests for built-in bias, or discriminatory tendency, or any opportunity to argue that the tests or the test questions are not well suited to protect the employees’ rights, or to check the accuracy of the scoring.” The Company‘s claim that employees’ privacy might be abused by disclosure to the Union of the scores he rejected as insubstantial. Accordingly, he recommended that
The Company specifically requested the Board “to adopt that part of the order which requires that tests be turned over to a qualified psychologist,” but excepted to the requirement that the employee-linked scores be given to the Union. It contended that the only reason asserted by the Union in support of its request for the scores—to check their arithmetical accuracy—was not sufficient to overcome the principle of confidentiality that underlay its psychological testing program. The Union filed a cross exception to the requirement that it select a psychologist, arguing that it should not be forced to “employ an outsider for what is normal grievance and Labor-Management work.”
The Board, and the Court of Appeals for the Sixth Circuit in its decision enforcing the Board‘s order, ordered the Company to turn over all the material directly to the Union. They concluded that the Union should be able to determine for itself whether it needed a psychologist to interpret the test battery and answer sheets. Both recognized the Company‘s interest in maintaining the security of the tests, but both
II
Because of the procedural posture of this case, the questions that have been preserved for our review are relatively narrow. The Company has presented a lengthy argument designed to demonstrate that the Board and the Court of Appeals misunderstood the premises of its aptitude testing program and thus erred in concluding that the information requested by the Union would be of any actual or potential relevance to the performance of its duties. This basic challenge, insofar as it concerns the test battery and answer sheets, is foreclosed, however, by
A
We turn first to the question whether the Board abused its remedial discretion when it ordered the Company to deliver
limitation through a rule providing that any exception to a finding of the Administrative Law Judge not specifically urged before the Board “shall be deemed to have been waived.”
The Company has justified its failure to object on the ground that it had “no practical reason” to challenge the portion of the Administrative Law Judge‘s recommendation adopting its suggestion that the tests and answer sheets be disclosed to an intermediary. If this ground were accepted as an “extraordinary circumstance,” however, little would be left of the statutory exception. In any case, the Company‘s “practical” reason disappeared when it again failed to challenge the finding of relevance after the Union had filed a cross exception urging that direct disclosure be ordered.
Moreover, much of the Company‘s challenge to relevancy is based upon the arbitrator‘s findings and conclusion that examination of these materials would prove little. We do not question the arbitrator‘s interpretation of the collective agreement. Nonetheless, the parties agreed not to be bound by the arbitrator‘s determination of relevance, the arbitrator accepted this condition, and the Board concluded that the Union could properly invoke its jurisdiction on these terms. This is not to say that the arbitral award itself is irrelevant to this controversy. The arbitration record and award were before the Administrative Law Judge, and we do not understand the Board to have disturbed the arbitrator‘s resolution of the contract issues peculiarly within his competence. Cf. NLRB v. Acme Industrial Co., 385 U. S. 432, 436-437.
A union‘s bare assertion that it needs information to process a grievance does not automatically oblige the employer to supply all the information in the manner requested. The duty to supply information under § 8 (a) (5) turns upon “the circumstances of the particular case,” NLRB v. Truitt Mfg. Co., 351 U. S., at 153, and much the same may be said for
American Psychological Association.”
It is obvious that the remedy selected by the Board does not adequately protect the security of the tests. The restrictions barring the Union from taking any action that might cause the tests to fall into the hands of employees who have taken or are likely to take them are only as effective as the sanctions available to enforce them. In this instance, there is substantial doubt whether the Union would be subject to a contempt citation were it to ignore the restrictions. It was not a party to the enforcement proceeding in the Court of Appeals, and the scope of an enforcement order under § 10 (e) is limited by
We are mindful that the Board is granted broad discretion in devising remedies to undo the effects of violations of the Act, NLRB v. Seven-Up Bottling Co., 344 U. S. 344, 346; Fibreboard Corp. v. NLRB, 379 U. S. 203, 216, and of the principle that in the area of federal labor law “the relation of remedy to policy is peculiarly a matter for administrative competence.” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 194. Nonetheless, the rule of deference to the Board‘s choice of remedy does not constitute a blank check for arbitrary action. The role that Congress in § 10 (e) has entrusted to the courts in reviewing the Board‘s petitions for enforcement of its orders is not that of passive conduit. See Fibreboard Corp. v. NLRB, supra, at 216. The Board in this case having identified no justification for a remedy granting such scant protection to the Company‘s undisputed and important interests in test secrecy, we hold that the Board abused its dis-
B
The dispute over Union access to the actual scores received by named employees is in a somewhat different procedural posture, since the Company did on this issue preserve its objections to the basic finding that it had violated its duty under § 8 (a) (5) when it refused disclosure. The Company argues that even if the scores were relevant to the Union‘s grievance (which it vigorously disputes), the Union‘s need for the information was not sufficiently weighty to require breach of the promise of confidentiality to the examinees, breach of its industrial psychologists’ code of professional ethics, and potential embarrassment and harassment of at least some of the examinees. The Board responds that this information does satisfy the appropriate standard of “relevance,” see NLRB v. Acme Industrial Co., 385 U. S. 432, and that the Company, having “unilaterally” chosen to make a promise of confidentiality to the examinees, cannot rely on that promise to defend against a request for relevant information. The professional obligations of the Company‘s psychologists, it argues, must give way to paramount federal law. Finally, it dismisses as speculative the contention that employees with low scores might be embarrassed or harassed.
We may accept for the sake of this discussion the finding that the employee scores were of potential relevance to the Union‘s grievance, as well as the position of the Board that the federal statutory duty to disclose relevant information cannot be defeated by the ethical standards of a private group. Cf. Nash v. Florida Industrial Comm‘n, 389 U. S. 235, 239. Nevertheless we agree with the Company that its willingness to disclose these scores only upon receipt of consents from the examinees satisfied its statutory obligations under § 8 (a) (5).
The sensitivity of any human being to disclosure of information that may be taken to bear on his or her basic competence is sufficiently well known to be an appropriate subject of judicial notice.16 There is nothing in this record to
Under these circumstances, any possible impairment of the function of the Union in processing the grievances of employees is more than justified by the interests served in conditioning the disclosure of the test scores upon the consent of the very employees whose grievance is being processed. The burden on the Union in this instance is minimal. The Company‘s interest in preserving employee confidence in the testing program is well founded.
In light of the sensitive nature of testing information, the minimal burden that compliance with the Company‘s offer would have placed on the Union, and the total absence of
employee records);
The judgment is vacated, and the case remanded to the Court of Appeals for the Sixth Circuit for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE STEVENS, concurring in part and dissenting in part.
This is a close case on both issues. With respect to the test battery and answer sheets, I agree with MR. JUSTICE WHITE that we should respect the Board‘s exercise of its broad remedial discretion. On the other hand, I agree with the Court that the Union should not be permitted to invade the individual employees’ interest in the confidentiality of their test scores without their consent. Accordingly, I join all but Part II-A of the Court‘s opinion and also join Part I of MR. JUSTICE WHITE‘S dissent.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, and with whom MR. JUSTICE STEVENS joins as to Part I, dissenting.
The Court today disapproves enforcement of an order of the National Labor Relations Board essentially on the theory that the order fails to accommodate properly the competing interests of the Union, individual employees, and the employer. We have formerly stressed, however, that “balancing . . . conflicting legitimate interests . . . to effectuate na-
tional labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.” Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978), quoting NLRB v. Truck Drivers, 353 U. S. 87, 96 (1957). Because I perceive no warrant to disturb the balance the Board has struck in this case, I dissent.
I
As the Court holds, the relevance of the test questions and answer sheets to the performance of the Union‘s statutory duties is established for present purposes by the Company‘s failure to press the issue properly before the Board. The Court, moreover, does not explicitly upset the Board‘s determination that the Company‘s failure to release those materials to the Union amounted to an unfair labor practice. The only issue here regarding the test questions and answer sheets is “whether the Board abused its remedial discretion when it ordered the Company to deliver directly to the Union the copies of the test battery and answer sheets.” Ante, at 312-313 (emphasis added). If, however, the basic impropriety of the Company‘s failure to divulge the materials to the Union is settled, the Board‘s remedial authority to compel conditional disclosure is abundantly clear. The Court is quite wrong in holding that the Board‘s order exceeded the agency‘s “broad discretionary [remedial power].” Fibreboard Corp. v. NLRB, 379 U. S. 203, 216 (1964). For it is too well established that a decree fashioned by the Board to remedy violations of the Act “will not be disturbed ‘unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.‘” Ibid., quoting Virginia Elec. & Power Co. v. NLRB, 319 U. S. 533, 540 (1943).
The Court nevertheless asserts that the Board erred in directing the Company to release the test questions and
A
The Board ordered release of the test questions and answer sheets only on condition that the Union preserve their secrecy. Specifically, the Union was admonished not to copy the materials or to make them available to potential test takers or to others who might advise the employees of their content. The Court scoffs at the order; however, on the ground that “there is substantial doubt whether the Union would be subject to a contempt citation were it to ignore the restrictions.” Ante, at 315.1 But the Board placed no reliance on contempt sanc-
The Union has enjoyed a long and extensive relationship with the employer2 that it would be loath to jeopardize by intentionally breaching the conditions of release. Cf. Fawcett Printing Corp., 201 N. L. R. B. 964, 974 (1973). Even if the Union had any incentive to publicize the examination questions, its ardor would be dampened by the likely long-term consequences of that course; the Board exercises continuing authority over the Union‘s affairs, and it may well approve the Company‘s future insistence on rigorous secrecy, thus delimiting the Union‘s subsequent latitude in grievance processing.3 Moreover, dissemination of test materials to potential test takers might impair the interests of those employees who qualify fairly for a desired position, thus inviting their disapprobation.4
B
Besides overrating the hazards of direct release to the Union of the test questions, the Court undervalues the interests vindicated by that procedure. The Court asserts simply that the “Board has cited no principle of national labor policy to warrant a remedy that would unnecessarily disserve [the Company‘s interest in maintaining secrecy], and we are unable to identify one.” Ante, at 315. The Board observed in its decision, however, that “[a]s the bargaining agent of the employees involved, it is the Union which is entitled to information which is necessary to its role as bargaining agent in the administration of the collective-bargaining agreement.” 218 N. L. R. B. 1024 (1975). The employer‘s “accommodation“—releasing the test questions solely to a psychologist—which the Court tacitly endorses, is fundamentally at odds with the basic structure of the bargaining process. Congress has conferred paramount representational responsibilities and obligations on the employees’ freely chosen bargaining agent. Yet the Company‘s alternative would install a third-party psychologist as a partner, if not primary actor, in promotion-related grievance proceedings.
II
The Court further concludes that the Company properly declined to disclose the examinees’ test scores, associated with the employees’ names, absent consent by the examinees themselves.5 In the majority‘s view, the Board accorded too little
Preliminarily, it is notable that the confidentiality of the test results was significantly compromised by circumstances the utility of such information in determining whether the test battery fairly measures job aptitude in particular instances is illustrated by the following colloquy between the arbitrator and an expert witness in the Company‘s employ:
“THE ARBITRATOR: I guess what I am wondering about in this kind of a test is when you grade these, you are just ... taking the raw score and not looking at what might be the elements in the test. Is that right?
“THE WITNESS: No. We would look at the elements of the test. We always look at the parts of the test because sometimes a performance on a particular kind of segment of any test might indicate that we have a bad testing situation; this person really didn‘t have an opportunity to do what he is capable of doing, and you then can find out that, for example, a person‘s native language might not be English and that might account for the peculiar thing and you would then not even perhaps score the test.
“THE ARBITRATOR: How would you see that? How would you find that data?
“THE WITNESS: Well, you would see it because this particular test has, for example, several different elements tapping different kinds of abilities, some based on verbal use of language and some not so heavily weighted in that direction, and you would see a pronounced difference which is completely out of character. It just doesn‘t fit.
“This is what normally happens when given the test. A test is an overall look at engineering and physical science aptitudes. That is a rather closely-knit set, and if one of the tests were way off, one might then legitimately ask whether or not you had a good test overall.” App. 324-325.
Significantly, the employer has presented no evidence that the employees involved actually oppose disclosure. Nor has the Company demonstrated any palpable basis for believing that release will result in harassment or ridicule of the examinees. Cf. United Aircraft Corp. v. NLRB, 434 F. 2d 1198, 1207 (CA2 1970), cert. denied, 401 U. S. 993 (1971). The Court notes that “the Company presented evidence that disclosure of individual scores had in the past resulted in the harassment of some lower scoring examinees who had, as a result, left the Company.” Ante, at 319. But that evidence consisted of an isolated representation by a Company psychologist concerning events occurring “many, many years ago.” App. 84. And the Administrative Law Judge evidently dismissed the account in concluding that the Company had “produced no probative evidence that the employees’ sensitivities are likely to be abused by disclosure of the scores.” 218 N. L. R. B., at 1035.6 When an employer resists the
Moreover, there is no basis in the governing statute or regulations for attributing ascendant importance to the employees’ confidentiality interests. Whether confidentiality considerations should prevail in the circumstances of this case is, as the Company and majority agree, principally a matter of policy. But it cannot be gainsaid that the Board is the body charged in the first instance with the task of discerning and effectuating congressional policies in the labor-management area. Its judgments in that regard should not be lightly overturned. Yet the Court strikes its own balance according decisional weight to concerns having no asserted or apparent foundation in the statute it purports to construe or in other applicable legislation.
The Court lightly dismisses the Union‘s interest in receipt of the examinees’ identified scores, with or without consent, by declaring the burdens involved as “minimal.” Ante, at 319. The Administrative Law Judge noted, however, that the “Union‘s obligation is to represent the unit of employees as a whole[; the Company] may not frustrate this by requiring the Union to secure the consent of individuals in the unit in order to secure information relevant and reasonably necessary to the enforcement of the collective-bargaining agreement which exists for the benefit of all.” 218 N. L. R. B., at 1036.7
In sum, I think the Board‘s resolution is sound and that the Sixth Circuit‘s judgment enforcing it should be sustained. I do not mean to suggest that the considerations advanced by the Company are without substance or that this case does not present a “difficult and delicate” task of balancing competing claims. Cf. Beth Israel Hospital v. NLRB, 437 U. S., at 501. But, by virtue of that, this is precisely the kind of case in which “considerable deference” is owed the Board. NLRB v. Iron Workers, 434 U. S. 335, 350 (1978); see NLRB v. Insurance Agents, 361 U. S. 477, 499 (1960); NLRB v. Truck Drivers, 353 U. S., at 96. Importantly, “[h]ere, as in other cases, we must recognize the Board‘s special function of applying the general provisions of the Act to the complexities of industrial life, ... and of ‘[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases’ from
Notes
Both the Company and the Union were named defendants in a lawsuit in which various Company employment practices, including aptitude tests used for other job classifications, were found to violate
After the conclusion of the arbitration, the Union was required to return “all copies of the battery of tests” to the Company. The Court of Appeals, in enforcing the Board‘s order, stated that the “restrictions on use of the materials and obligation to return them to Detroit Edison are part of the decision and order which we enforce.” 560 F. 2d 722, 726. In other contexts, the courts have generally rejected claims of confidentiality as a basis for withholding relevant information. See General Electric Co. v. NLRB, 466 F. 2d 1177 (CA6 1972) (wage data); NLRB v. Frontier Homes Corp., 371 F. 2d 974 (CA8 1967) (selling-price lists); Curtiss-Wright Corp. v. NLRB, 347 F. 2d 61 (CA3 1965) (job evaluation and wage data); NLRB v. Item Co., 220 F. 2d 956 (CA5), cert. denied, 350 U. S. 836 (1955); cf. United Aircraft Corp., 192 N. L. R. B. 382, 390 (1971) (company physician‘s records not disclosable without employee‘s permission unless needed for a particular grievance), modified on other issues sub nom. Machinists v. United Aircraft Corp., 534 F. 2d 422 (CA2 1975), cert. denied, 429 U. S. 825 (1976); Shell Oil Co. v. NLRB, 457 F. 2d 615, 619 (CA9 1972) (refusal to furnish employees’ names without consent was proper when it was “establish[ed] beyond cavil that there was a clear and present danger of harassment and violence“). See also Cowles Communications, Inc., 172 N. L. R. B. 1909 (1968) (employees’ salaries and other particularized data about employees); Electric Auto-Lite Co., 89 N. L. R. B. 1192 (1950) (wage data); R. Gorman, Labor Law 417-418 (1976); Comment, 91 Harv. L. Rev., supra n. 3, at 873-874, and n. 35. In NLRB v. Wyman-Gordon Co., 394 U. S. 759 (1969), in another setting, a plurality of this Court observed: “The disclosure requirement [imposed by the Board and concerning employees’ names and addresses] furthers [statutory objectives] by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses. It is for the Board and not for this Court to weigh against this interest the asserted interest of employees in avoiding the problems that union solicitation may present.” Id., at 767. American Federation of Govt. Employees v. Defense General Supply Center, 573 F. 2d 184 (CA4 1978), from which the majority seeks support, ante, at 319 n. 16, involved a federal employer not subject to the National Labor Relations Act and a construction of the federal Privacy Act.