Detroit Edison Company v. National Labor Relations Board

• Decision Date: 05 March 1979
• Docket Number: No. 77-968,77-968
• Citation: 99 S.Ct. 1123,59 L.Ed.2d 333,440 U.S. 301
• Parties: DETROIT EDISON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD
• Court: U.S. Supreme Court

440 U.S. 301

99 S.Ct. 1123

59 L.Ed.2d 333

DETROIT EDISON COMPANY, Petitioner,

v NATIONAL LABOR RELATIONS BOARD.

No. 77-968.

Argued Nov. 6, 1978.

Decided March 5, 1979.

Syllabus

Petitioner employer, in response to a request made by a Union in connection with arbitration of a grievance filed on behalf of employees in a bargaining unit, supplied the Union with certain information pertaining to petitioner's employee psychological aptitude testing program under which certain unit employees had been rejected for certain job openings because of their failure to receive "acceptable" test scores. However, petitioner refused to release the actual test questions, the actual employee answer sheets, and the scores linked with the names of the employees who received them, maintaining that complete confidentiality of these materials was necessary to insure the future integrity of the tests and to protect the examinees' privacy interests. Petitioner did offer to turn over the scores of any employee who signed a waiver releasing petitioner's psychologist from his pledge of confidentiality, but the union declined to seek such releases. In unfair labor practice proceedings against petitioner—based on the union's charge that petitioner had violated its duty to bargain collectively under § 8(a)(5) of the National Labor Relations Act by refusing to provide relevant information needed by the union for the proper performance of its duties as the employees' bargaining representative—the National Labor Relations Board concluded that all the requested items were relevant to the grievance and ordered petitioner to turn over all of the materials directly to the union, subject to certain restrictions on the union's use of the information. The Board rejected petitioner's request that, in order to preserve test secrecy, the tests and answer sheets be turned over to an industrial psychologist selected by the union. The Board and the Court of Appeals, in its decision enforcing the Board's order, both rejected petitioner's claim that employee privacy and the professional obligations of petitioner's industrial psychologists should outweigh the Union's request for the employee-linked scores. Held:

1. The Board abused its remedial discretion in ordering petitioner to turn over the test battery and answer sheets directly to the union. Pp. 312-317.

(a) 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. 149, 153, 76 S.Ct. 753, 756, 100 L.Ed. 1027, and much the same may be said for the type of disclosure that will satisfy that duty. Pp. 314-315.

(b) Petitioner's interest in test secrecy has been abundantly demonstrated on the record, which established petitioner's freedom under the collective-bargaining contract to use aptitude tests as a criterion for promotion, the empirical validity of the tests, and the relationship between secrecy and test validity. The Board has cited no principle of national labor policy to warrant a remedy that would unnecessarily disserve this interest. P. 315.

(c) The remedy selected by the Board, 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, does not adequately protect the security of the tests. There is substantial doubt whether the union, which was not a party to the enforcement proceeding in the Court of Appeals, would be subject to a contempt citation were it to ignore the restrictions. Moreover, the union clearly would not be accountable in either contempt or unfair labor practice proceedings for the most realistic vice inherent in the Board's remedy—the danger of inadvertent leaks. Pp. 315-316.

2. Petitioner's willingness to disclose test scores linked with the employee names only upon receipt of consents from the examinees satisfied petitioner's statutory obligations under § 8(a)(5). In light of the sensitive nature of testing information, the minimal burden that compliance with petitioner's offer would have placed on the union, and the total absence of evidence that petitioner had fabricated concern for employee confidentiality only to frustrate the union in the discharge of its responsibilities, the Board's conclusion that petitioner, in resisting an unconsented-to disclosure of individual test results, violated the statutory obligation to bargain in good faith cannot be sustained. Accordingly, the order requiring petitioner unconditionally to disclose the employee scores to the union was erroneous. Pp. 317-320.

6 Cir., 560 F.2d 722, vacated and remanded.

John A. McGuinn, Washington, D. C., for petitioner.

Norton J. Come, Washington, D. C., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

The duty to bargain collectively, imposed upon an employer by § 8(a)(5) of the National Labor Relations Act,¹ includes a duty to provide relevant information needed by a labor union for the proper performance of its duties as the employees' bargaining representative. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027; NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495. In this case an employer was brought before the National Labor Relations Board to answer a complaint that it had violated this statutory duty when it refused to disclose certain information about employee aptitude tests requested by a union in order to prepare for arbitration of a grievance. The employer supplied the union with much of the information requested, but refused to disclose three items: the actual test questions, the actual employee answer sheets, and the scores linked with the names of the employees who received them.² The Board, concluding that all the items requested were relevant to the grievance and would be useful to the union in processing it ordered the employer to turn over all of the materials directly to the union, subject to certain restrictions on the union's use of the information. 218 N.L.R.B. 1024 (1975). A divided Court of Appeals for the Sixth Circuit ordered enforcement of the Board's order without modification. 560 F.2d 722 (1977).

We granted certiorari to consider an important question of federal labor law. 435 U.S. 941, 98 S.Ct. 1520, 55 L.Ed.2d 537. 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 are not significantly different." Management decisions to bypass employees with greater seniority were subject to the collective agreement's grievance machinery, including ultimate arbitration, whenever a claim was made that the bypass had been arbitrary or discriminatory.

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 Wonderlic Personnel Test, the Minnesota Paper Form Board (MPFB), and portions of the Engineering and Physical Science Aptitude Test (EPSAT). All employees who applied for acceptance into the Instrument Man classification were required to take this battery. Three adjective scores were possible: "not recommended," "acceptable," and "recommended." ⁵

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...