N.L.R.B. v. Detroit Edison Co., 75-2192

• Decision Date: 10 August 1977
• Docket Number: No. 75-2192,75-2192
• Citation: 560 F.2d 722
• Parties: 95 L.R.R.M. (BNA) 3341, 82 Lab.Cas. P 10,062 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The DETROIT EDISON COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 722

560 F.2d 722

95 L.R.R.M. (BNA) 3341, 82 Lab.Cas. P 10,062

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The DETROIT EDISON COMPANY, Respondent.

No. 75-2192.

United States Court of Appeals, Sixth Circuit.

Argued April 11, 1977.

Decided Aug. 10, 1977.

Elliott Moore, Deputy Associate Gen. Counsel, Aileen Armstrong, Bernard Gottfried, Director Region 7, Director, Detroit, Mich., for appellant.

James E. Brenner, Ralph H. Houghton, Jr., Fischer, Franklin & Ford, Detroit, Mich., John A. McGuinn, Farmer, Shibley, McGuinn & Flood, Washington, D. C., for appellee.

Before WEICK and LIVELY, Circuit Judges; and CECIL, Senior Circuit Judge.

LIVELY, Circuit Judge.

The question in this case is whether the National Labor Relations Board abused its discretion in directing The Detroit Edison Company to deliver to a union which represented certain of its employees the psychological aptitude tests used in determining eligibility for promotion together with the answer sheets and scores of employees who took the tests. After conducting a hearing on an unfair labor practices charge filed by the union the administrative law judge found that the information sought by the union was relevant and would be of use to the union in carrying out its statutory duty as the bargaining representative of the employees and that failure to furnish the requested information was a violation of Section 8(a)(5) of the National Labor Relations Act. The administrative law judge directed Detroit Edison to give to the union the scores of the individual applicants. However, he directed that the tests and actual answer sheets of the applicants be delivered "only to a qualified psychologist selected by the Union to act in its behalf in this matter . . . ." He further ordered that the psychologist shall be free to fully advise the Union concerning these tests, so that the Union may fully protect the rights of the employees in the appropriate unit; the Union shall have the right to see and study the tests, and to use the tests and the information contained therein to the extent necessary to process and arbitrate the grievances, but not to copy the tests, or otherwise use them for the purpose of disclosing the tests or the questions to employees who have in the past, or who may in the future take these tests, or to anyone (other than the arbitrator) who may advise the employees of the contents of the tests.

Both parties filed exceptions to the decision and order of the administrative law judge, but Detroit Edison limited its exceptions to that portion of the decision and order which required it to turn over to the union actual test scores of identified individual employees. The company did not except to the finding that it had engaged in an unfair labor practice by refusing the union's request for the test materials, but requested the Board "to adopt that part of the order which requires the test be turned over to a qualified psychologist selected by the Union . . . ."

The Board, in its decision and order which is reported at 218 NLRB No. 147, affirmed the rulings, findings and conclusions of the administrative law judge and adopted his recommended order with one modification. It ordered Detroit Edison to supply copies of the tests and answer sheets and scores directly to the union rather than to a qualified psychologist selected by the union, while adopting the restrictions placed on use of the materials by the administrative law judge. The matter is before this court on an application for enforcement filed by the Board and a petition for review filed by Detroit Edison. We conclude that the order of the Board should be enforced.

The dispute in this case arose when Detroit Edison posted notices of six vacancies in the classification of "Instrument Man B" at its Monroe generating plant. Ten employees from the Monroe unit applied for promotion to the posted position, but all failed to achieve the "acceptable" score set by the company on a battery of psychological aptitude tests. The vacancies were filled by promoting employees with less seniority from other units of Detroit Edison who scored at or above the recommended level. The union filed a grievance under the terms of the collective bargaining agreement and requested the company to deliver to it the actual tests that were given and the answers sheets and scores of the employees who took the tests, asserting that these documents were needed in processing the grievance. Though the grievance proceeded to arbitration, the union filed an unfair labor practices charge for failure to furnish the requested information and it was stipulated that the arbitrator's decision would not be final until there had been a disposition of the unfair labor practices charge.

The collective bargaining agreement provided that promotions would be based on seniority "whenever reasonable qualifications and abilities of the employees being considered are not significantly different . . .." The union conceded in the arbitration proceedings that the company had established the right to use standardized tests as a measure of an employee's qualifications, but contended that it could only police the contract by examining copies of the tests and actual test papers when an issue of fairness related to the testing procedure was raised. Detroit Edison contended that the tests were designed only to predict future success in a particular job and did not measure existing skills and knowledge; therefore, it argued, the sample questions and descriptive literature of the tests together with validation studies were all that would be required to judge its fairness. The company also charged that disclosure of the actual test battery and answer sheets to the union would inevitably lead to dissemination of questions and answers. With respect to the answer sheets and tests scores of individual employees, Detroit Edison claimed "confidentiality" as justification for not turning these documents over to the union. During the unfair labor practices proceeding the company offered to disclose the actual tests to a qualified industrial psychologist on behalf of the union, to let the union's lay representative take the test and to furnish the answer sheets and actual scores of individual employees if the employees consented.

It is the duty of an employer generally to provide to the authorized representative of its employees information which the representative needs to perform its duties. N.L.R.B. v. Acme Industrial Company, 385 U.S. 432, 435-36, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); N.L.R.B. v. Truitt Manufacturing Company, 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); Kayser-Roth Hosiery Co., Inc. v. N.L.R.B., 447 F.2d 396 (6th Cir. 1971); N.L.R.B. v. Rockwell-Standard Corp., 410 F.2d 953 (6th Cir. 1969). Referring to permissible Board action directing an employer to deliver such requested information to a union, the Court in Acme Industrial Company, 385 U.S. supra, at 437, 87 S.Ct. at 568, said: "It was only acting upon the probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities." Matters related to seniority and eligibility for promotion under a collective bargaining agreement satisfy the test of probability of relevance to the duties and responsibilities of the union representing employees under that agreement. Since Detroit Edison unilaterally selected the standardized tests to be included in the examination for Instrument Man B and unilaterally determined the cutoff point below which no applicant would be considered eligible for promotion to that classification, the union was entitled to information about the tests.

Without actually contesting the finding that the tests, answer sheets and scores are relevant, Detroit Edison argues, in effect, that the circumstances of this case are such as to require that the tests and answer sheets be delivered only to a qualified psychologist. The Supreme Court held in N.L.R.B. v. Truitt Manufacturing Company, supra, 351 U.S. at 153-54, 76 S.Ct. at 756, that "(t)he inquiry must always be whether or not under the circumstances of the particular case the statutory obligation to bargain in good faith has been met." Detroit Edison points to this court's decision in Kroger Company v. N.L.R.B., 399 F.2d 455 (6th Cir. 1968), as supporting its position. There the court denied enforcement of a Board order which directed delivery to a union of an entire management program which covered many areas of managerial concern other than the specific matter which was in dispute at the time the request was made. The court noted that the union request for disclosure was cast in very broad terms and that there was no showing that the information requested was needed for any currently unresolved grievance. In Kroger, the court stated that ". . . it is perhaps significant in this case that the union's showing of need for purposes of collective bargaining is more general and theoretical than immediate and practical." Id. at 457. These comments are not descriptive of the present case. The request from the union in this case was in very specific terms and arose out of an unresolved grievance. Considering "the circumstances of the particular case," Truitt,supra, the Kroger court concluded that the company did not commit an unfair labor practice in refusing to deliver the requested information.

We have also examined Emeryville Research Center, Shell Development Company v. N.L.R.B., 441 F.2d 880 (9th Cir. 1971), and Shell Oil Company v. N.L.R.B., 457 F.2d 615 (9th Cir. ...