*2 LIVELY, Before WEICK and Circuit CECIL, Judges; and Judge. Senior Circuit LIVELY, Judge. question in this case is whether the
National Labor Relations Board abused its directing discretion in The Detroit Edison Company to deliver to a union which repre- psycho- sented certain of its logical aptitude determining tests used in eligibility promotion together with the answer sheets and scores of conducting hearing took the tests. After practices charge on an unfair labor judge the union the administrative sought by found that the information union was relevant and would be of use to carrying the union in out its duty as the bargaining representative of the em- ployees and that failure to furnish the re- quested information was a violation of Sec- 8(a)(5) of the National Labor Relations judge Act. The administrative law directed give union the applicants. scores of individual How- ever, he directed that the tests and actual applicants answer sheets of the be delivered “only
the Union to act in its behalf in this matter
He further ordered that
fully
promotion
posted
shall be free
position,
but all
concerning
the Union
failed
“acceptable”
advise
to achieve the
set
score
protect the
may fully
that the Union
the company
so
on a battery
psychologi-
rights
appropri-
aptitude
cal
tests. The vacancies were
unit;
the right
by promoting
the Union shall have
filled
ate
with
se-
less
niority
other
study
see and
and to use the
from
units of
Detroit Edison
*3
who
at
scored
or above
and the information
contained
the
tests
recommended
level. The union filed
grievance
to
to the extent
therein
the terms of
the collective
grievances,
bargaining
arbitrate the
but not to
and
agreement
requested
and
tests,
the
to
copy
company
the
them
or otherwise use
for
deliver to it the actual tests that were given
purpose
disclosing
of
the tests or the
the
and the answers sheets and
the
scores of
questions
who have in the
who took the
asserting
may
or who
take these
past,
future
that
these documents were
pro-
needed in
(other
the
anyone
or to
than
arbi-
cessing
grievance. Though
the
griev-
trator)
advise the
of
proceeded
arbitration,
ance
contents of the tests.
filed
practices
an unfair labor
charge for
parties filed
to the deci-
exceptions
Both
failure
requested
to furnish the
information
and order of the administrative law
sion
stipulated
and it was
that
the arbitrator’s
excep-
but Detroit Edison limited its
judge,
decision
not be
would
final until there had
portion
of the decision and
tions
disposition
been a
of the unfair
prac-
labor
required
which
it
over to the
order
to turn
charge.
tices
actual test scores of identified indi-
The
bargaining
collective
agreement pro-
employees.
did not
company
vidual
promotions
vided that
would be
on
based
except to
finding
engaged
that it
had
seniority “whenever
qualifica-
reasonable
practice
refusing
unfair
labor
by
an
tions and
of the employees being
abilities
materials,
request for the
but
union’s
test
considered are not significantly different
part
that
adopt
Board “to
..” The union conceded in the arbi-
requires
order which
be turned
proceedings
tration
company
had
by
to a
selected
over
established
to use standardized
Union .
.
tests
employee’s
as a measure of an
qualifi-
Board, in its
order which
decision and
cations,
contended that
it could
reported at 218 NLRB
affirmed
No.
police
by examining copies
the contract
rulings, findings
and conclusions of the
tests and actual test
an
when
adopted
judge
administrative law
and
his
issue of fairness related to the testing pro-
order
with one modification.
cedure
raised. Detroit
Edison contend-
supply copies
It ordered
Edison to
ed that
tests were designed only
of the
and answer sheets and scores
predict
job
success in
particular
future
directly to the union
to a quali-
rather than
measure existing
did not
skills and
union,
psychologist
fied
therefore,
it
knowledge;
argued, the sam-
adopting
while
placed on
restrictions
ple questions
descriptive
literature
use
the materials by the administrative
together
the tests
with validation studies
judge.
The matter
this
is before
court
were all
judge
its
application
an
on
enforcement filed
fairness. The
also charged that
petition
the Board and a
review
disclosure of
actual
test battery Detroit Edison. We
the order
conclude that
inevitably
to the union
answer sheets
Board
should be enforced.
questions
lead to
an-
dissemination
dispute
in this case arose when De-
respect to the
swers. With
answer sheets
posted
troit Edison
notices
vacancies
of six
of individual employees,
and tests scores
in the classification of
B”
“Instrument Man
Detroit Edison claimed
as
“confidentiality”
at its Monroe generating plant.
justification
turning
Ten em-
for not
these docu-
ployees
applied
from the Monroe
the union. During
unit
ments over to
the unfair
whether
of-
or not under the
practices proceeding
labor
circumstances of
quali-
particular
the actual tests
to disclose
case the
obligation
fered
on behalf
bargain
industrial
in good
fied
faith has been met.”
lay representative
to let the
points
Detroit Edison
to this court’s decision
the answer
test and to furnish
take the
in Kroger Company N.L.R.B.,
em-
scores of individual
sheets and actual
as supporting
posi-
its
employees consented.
ployees if the
tion. There the court denied enforcement
aof Board order which directed delivery to
gen
duty
employer
It is
management
a union of an entire
program
repre
erally
provide
to the authorized
many
which covered
areas of managerial
its
sentative
concern other
than the specific matter
perform
needs to
representative
which the
dispute
which was in
at the time the re-
its duties. N.L.R.B. v. Acme Industrial
quest was made. The court noted that the
432, 435-36,
Company, 385
for disclosure was cast
(1967);
v. Truitt
17 L.Ed.2d
N.L.R.B.
*4
very broad terms and that
there was no
149,
Manufacturing Company, 351
76
U.S.
showing that
753,
information
(1956);
requested
Kayser-
Without
and that
the company was not
afforded an
finding
opportunity
comply
that
answer sheets
because
relevant,
argues,
specify
Edison
of failure of the union to
scores are
Detroit
its needs.
effect,
Company
N.L.R.B.,
this case
In
supra,
that the circumstances of
Shell Oil
require
employer
are
as to
that
the tests
court found that the
had
such
de-
quali
delivered
clined to turn over the names and
answer sheets be
addresses
Supreme
Court held
of all
of a unit
to the
psychologist. The
fied
Manufacturing Com because of a bona fide concern that
in N.L.R.B. v. Truitt
non-
153-54,
harassed,
they
at
as
pany, supra, 351 U.S.
S.Ct. .at
always
during
be
had been
a recent strike. The
inquiry
that
must
court
“[t]he
reason-
1975). Applying
made a
principles,
also found that
we find
which
method
able offer of a substitute
no
abuse
discretion in
remedy
or-
contact all
the union could
present
dered
Board in the
case.
retreat
adamantly refused to
that
Both the administrative law judge
demands.
original
from its
and the Board
give
ordered the
present case
In the
to the union actual test scores linked to the
par
argues
“circumstances of the
that the
names of the
who took the tests.
that the
actual
ticular case” are
argues
The company
that
it would be a
will be of no
tests which it uses
value
breach of confidentiality to disclose the ac
unau
if the tests fall into
union and that
tual
scores of employees who did not
they will
use
thorized hands
be
no future
achieve the
grade
and that it
though
the company
great
deal of
probable
“involve
misuse of such
gone
has
se
expense
effort and
into their
embarrassment,
needless
humiliation
It
possible
lection and validation.
taking
harassment of those
the tests.”
any
not be able to make
the union will
Detroit Edision asserts that it assured each
about
determinations
fairness
employee who took the test that the scores
and that
it
itself
will need
disclosed,
would not be
that manage
Nevertheless,
advice of a
ment itself has not had
access
scores
be al
is a decision that
union should
employees.
identified
A
promise
similar
than a
to its
lowed to make rather
condition
that relevant economic data would not be
the tests.
be a
right to examine
This
parties
disclosed to third
was held Gener
case
have been
if the
where it would
better
*5
N.L.R.B.,
al
Company
Electric
v.
supra, not
Edison had
able to
and Detroit
been
present
a valid defense when an employ
agree
party
upon a neutral
to receive
er was
to disclose relevant infor
documents,
Company
General Electric
v.
see
mation
union. The requirement
N.L.R.B.,
1177,
(6th
1185
Cir.
the bargaining representative be furnished
1972);
agree
but in the absence of such an
with relevant
dispensing
ment the Board did not err in
carry out its
any
duties
judge’s
with the administrative law
recom
overcomes
claim of
confidentiality in
the absence of a showing
mendation that
documents be delivered
great
to an
The an
likelihood of
flowing
industrial
harm
from
Company
swer to Detroit Edison’s concern about the
the disclosure. Shell Oil
v. N.L.
possibility
R.B.,
618-19;
unau
falling
into
supra, 457 F.2d at
United
thorized hands
found in the Board’s
N.L.R.B.,
Corporation
Aircraft
v.
434 F.2d
adoption
judge’s
of the administrative law
1198,
(2d
denied,
1207
Cir.
cert.
401
limitations
on use
materials
993,
1232,
91
S.Ct.
troit Edison are
of the decision and
disclosure
the actual test
and of
order which we enforce.
Violation of
test scores
linked
would involve its in
provisions
subject
same
psychologists
dustrial
in a breach of their
any provision
sanctions as
of a
violation
professional ethical code. The .American
judicially
order of
Be
enforced
the Board.
Psychological Association
brief as
experience
cause of its
in such
matters
contending
amicus curiae
Board’s
competence
its administrative
the Board is
order ignores the
fashioning
psychologists,
vested with a broad discretion in
interests of
Paper
Corp.
remedies. Fibreboard
tested
Products
and future examinees
N.L.R.B.,
203, 216,
398,
battery,
as well as users of
379 U.S.
the test
includ
(1964).
ing
corresponding
logical tests which Detroit Edison had vali The company further offered to turn over great expense, by requiring dated at it to *6 qualified to a psychologist tests, selected and em- battery turn over to the union the ployed by the all of the withheld including papers. These test pa material which the requested. This pers custody qualified were in the psy would have afforded at least some (em protec- chologists employed by company the company, as the psychol- ployer), papers company to which even ogist would have been access, by bound the same management had no and the disclo ethical binding code as that company’s papers sure of such would violate the Code psychologists, but the union even refused to Psychological of Ethics of American accept this offer. recognized by Association which has been the statutes of the state Michigan, M.C. The Administrative Law Judge did enter 338.1001(b); L.A. Mich.Stat.Ann. 14- § § partial protective order which protect did 677(1)(b). the battery of tests but papers not the test or the names and scores of the examinees
The Board’s Order also the com- who took the tests. This order was as pany to turn over to the union the test follows: employee scores of each who had taken the score,
tests and link to his name his test
purposes
of the Act will best
[T]hat
notwithstanding the fact that the psycholo-
be
if Respondent
effectuated
be directed
gists had assured each examinee that such
supply copies
battery
to
of the
of tests
kept
score would be
confidential and would
administered to the employee applicants
anyone
not be disclosed to
without his writ-
position
for the
of Instrument Man B in
ten consent thereto. None of the exami-
proceeding, including
this
the actual test
given
nees had
such consent. A confiden-
applicants
of the
(necessary to
This,
accuracy
scoring
my
implies
check the
of the
of the
judgment,
in
tests),
by any
did not wish to be bound
considerations,
ethical
but wanted to be
in its
by
the Union to act
behalf
free to
test papers
any purpose
use the
matter,
in
such
to be
this
submission
',
it desired.
Respondent
10 days
made within
after
the individual se-
receives notification of
But
partial protective
even the
order of
psychologist
be free to
lected. The
shall
Judge,
the Administrative Law
which order
concerning
enough,
satisfy
was little
fully advise the Union
did not
the Board.
partial protective
Board reversed the
tests,
fully protect
may
so that the Union
order and ordered that
company
turn
appro-
in the
rights
over all
requested,
of the material
but im-
unit;
priate
the Union shall have the
posed upon the union the same conditions as
tests,
study the
and to
to see and
those which the Administrative Law Judge
con-
use the tests
the information
imposed on
This was real-
tained therein
extent
ly
dissented,
naive.
Kennedy
Member
stat-
arbitrate the
grievances,
ing:
copy
not to
or otherwise use
The majority’s modifications of the
them,
disclosing
purpose
for the
remedy
by
the Administra-
questions
tests or the
who
Judge
tive
justified.
Law
are not
There
past,
may
have
or who
is no professional obligation on the part
(oth-
anyone
future take these
or to
publicize
union not to
the tests or
arbitrator)
er
than the
advise
their results.
I do not see how this Board
the employees of the contents of the
can enforce its exhortation not to copy or
tests. After the conclusion of the arbi-
disclose
tests.
proceeding,
tration
or if no
vitally
Detroit Edison was
concerned in
made
reopen
hearing
arbitration
securing qualified applicants for a critical
days after
within 90
re-
position.
testing program
Its
has been nul-
tests, all
battery
copies
ceives the
lified
the action of the Board.
In a case
of tests shall
returned
be
where the union had requested information
Respondent.
Printing Corp.,
See Fawcett
which was too broad and
many
covered
(A. 38)
union’s psychologist, but the union declined
to accept such offer. papers simply These
could been lay not have evaluated
person.