The Detroit Edison Co.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1024 (N.L.R.B. 1975)

1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Detroit Edison Company and Local 223, Utility
Workers Union . of America , AFL-CIO. Case 7-
CA-10276(2)
June 30, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 29, 1975, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, the Respondent and the
Union filed exceptions, supporting briefs, and an-
swering briefs; and a brief amicus curiae was filed by
Michigan Psychological,Association.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
herein modified.
We agree with the Administrative Law Judge that
the Respondent violated Section 8(a)(5) of the Act by
refusing to provide the Union with copies of the
battery of aptitude tests administered to the employ-
ee applicants for the position of instrument man, B,
including the actual test papers of the applicants and
the actual test scores made by each employee. For
purposes of remedying this violation, we agree with
the Administrative Law Judge that the Respondent
should be required to submit the test scores to the
Union, but, contrary to the Administrative Lady
Judge, we believe that the test papers themselves
should also be submitted directly to the Union,
rather than "only to a qualified psychologist selected
by the Union to act in its behalf in this matter" and,
through him, to the Union.
The Administrative Law Judge has required the
intervention of a psychologist to receive the test
papers because he believes that the mere submission
of the tests to lay union representatives is not likely
to be productive of constructive results. It may well
be that the Union will fmd it necessary to retain a
psychologist to interpret the concept of Respondent's
tests and assist it in fulfilling its responsibility to
represent the employees. But it does not follow from
the existence of this possibility that we should
condition the Union's access to this information. As
the bargaining agent of the employees involved, it is
I The Respondent's request for oral argument is hereby denied as the
the Union which is entitled to information which is
necessary to its role as bargaining agent in the
administration of the collective-bargaining agree-
ment. We have found that the information requested
by the Union here may be of value to the Union in
fulfilling its responsibility to the employees. We
believe it is reasonable to assume that, having
requested the papers, the Union intends effectively to
utilize them. Consequently, we would not condition
the Union's access to the information on the
retention of a psychologist but rather would have
Respondent submit the information directly to the
Union and let the Union decide whether the
assistance or expertise of a psychologist is required.
Like the Administrative Law Judge, we are
concerned with protecting the tests from such
disclosure as would destroy their future utilization.
Although directing Respondent to supply copies of
the tests and the actual test papers to a qualified
psychologist, the Administrative Law Judge accord-
ed to the Union the right to see, study, and use them
to the extent necessary to process and arbitrate the
grievances for which they were requested, and then
to return them to Respondent, "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," as more fully explained by the Administrative
Law Judge in the section of his decision entitled
"The Remedy." While we are making the tests
available directly to the Union, we shall, in order to
preserve their future utility, impose the same restric-
tions upon their use by the Union as recommended
by the Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, The Detroit Edison Company, Detroit, Michi-
gan, its officers, agents, successors , and assigns, shall
take the action set forth in said recommended Order,
as so modified:
Substitute the following for paragraphs 2(a) and (b)
and reletter the remaining paragraphs accordingly:
"(a) Submit to the Union copies of the battery of
tests administered to employee applicants for the
position of instrument man B at the Monroe Power
Plant in November or December 1971, or January
record, exceptions, and briefs adequately present the issues and positions of
the parties.
218 NLRB No. 147
THE DETROIT EDISON COMPANY 1025
1972, including the actual test papers of the appli-
cants, and the actual test scores made by each
applicant, in accordance with this Decision."
MEMBER KENNEDY, concurring in part and dissenting
in part:
I would affirm the Decision of the Administrative
Law Judge in its entirety. The majority's modifica-
tions of the remedy recommended by the Adminis-
trative Law Judge are not justified. There is no
professional obligation on the part of the Union not
to publicize the tests or their results. I do not see how
this ]Board can enforce its exhortation not to copy or
to disclose the tests. Accordingly, I would adopt the
remedy recommended by the Administrative Law
Judge.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Detroit, Michigan, on September 23,
1974, upon a complaint issued on August 8, 1974, based
upon a charge filed by the above-named Charging Party
(herein the Union) on April 4, 1973. The complaint alleges
that, following the filing of a grievance concerning
qualifications for and promotion to the position of
instrument man B, the Union, on and after March 5, 1973,
requested the above-named Respondent (herein "the
Respondent") to furnish the Union with the aptitude tests
administered to each of the employee applicants for
promotion to the position of instrument man B, including
those promoted and not promoted, the examination papers
of those applicants, and their test scores, and that the
Respondent, in violation of Section 8(a)(1) and (5) of the
Act, since on or about March 15, 1973, has refused to
furnish the Union with the information described.
Respondent's answer to the complaint, as amended at
the hearing, admits the factual allegations set forth above,
with certain affirmative averments considered hereinafter,
but denies commission of the alleged unfair labor practices.
Respondent's answer admits allegations of the complaint
sufficient to justify the assertion of jurisdiction under
current standards of the Board (Respondent, a public
utility located in Michigan, during a recent annual period,
received supplies shipped in interstate commerce valued in
excess of $5,000,000, and during the same period sold
electrical energy to customers in the State of Michigan
valued in excess of $250,000), and to support a finding that
the Union is a labor organization within the meaning of the
Act.
1 The record includes transcripts of 5 days of hearing before an
arbitrator. These have been given careful study.
2 Respondent in its brief submitted proposed findings of fact and
conclusions of law which have been fully considered These are accepted
only to the extent they are consistent with the findings and conclusions set
forth hereinafter.
3 The complaint alleges, the answer admits, and I find that the following
constitutes a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act: "All operating and maintenance
employees of Respondent's Production Department at its Monroe Power
Upon the entire record in this case,' from observation of
the witnesses, and after due consideration of the briefs filed
by the General Counsel, the Union, and the Respondent, I
make the following:
FINDINGS AND CONCLUSIONS 2
A. Summary of the Facts and Issues
Since about 1943, the Union has beep certified as the
bargaining representative of Resporident3s employees in
approximately 2$ different appropriate units (Resp. Exh.
25). Among these, the Union was certified by the Board, on
April 1, 1971, as the bargaining representative of operating
and maintenance employees of Respondent's production
department at its Monroe Power Plant .3 These employees,
including the job classification of instrument man B at that
plant, were covered by a collective-bargaining agreement
between Respondent and the Union effective from June
16, 1969, through June 12, 1972, which has been succeeded
by another agreement negotiated in 1972.,
In late 1971, Respondent determined that six positions in
the classification of instrument man B should be filled at
its newly constructed Monroe power plant. The position,
while at the lowest starting grade under the bargaining
contract, and usually requiring training on the job, is
considered a critical job by Respondent because it is
involved with maintenance of plant instrumentation vital
to the operation of the plant, and is the natural path for
advancement to higher instrument man classifications.
Basically in accordance with provisions of the bargaining
agreement, notice of the vacancy was posted (Respondent's
variation from normal procedure is irrelevant to the issues
herein), and first consideration was given to applicants
from the Monroe power plant, as required by the contract.
The posted requirements for the instrument man B job
were: (1) satisfactory high school credits for 2 years, of
math and 1 year of science, (2) a satisfactory physical
examination, (3) a minimum of "recommended" on the
required instrument man aptitude tests selected by Re-
spondent, and (4) a satisfactory attendance record. Ten
Monroe plant employees bid for the job. All were rejected
for failure to make the cutoff score of 10.3 on the aptitude
tests.4 Over 30 employees from other units covered by the
contract who also bid for the job were then considered.
One, Elliott, who was an incumbent instrument man in
another unit was selected without the necessity of taking
the aptitude tests. Of the remaining applicants from the
other units, the five most senior men who made a score of
10.3 or better on the tests were selected for the open
positions.
On January 20, 1972, the Union filed a grievance
asserting that the testing procedure used was unfair and
Plant, but excluding supervising operators, student engineers , training
personnel, professional employees , technical employees, office clerical and
plant clerical employees , part-time employees , temporary employees,
seasonal employees , guards, foremen, assistant foreman, and all other
supervisors as defined in the Act, and all other employees.-
4 One of these, Wiley, had passed a prior aptitude test given by
Respondent for the position which set lower standards than the present
battery of tests. He was permitted to take the new battery, but failed to
make the cutoff score.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that six senior men from the Monroe power plant should
have been selected. Respondent rejected this grievance at
all steps of the grievance procedure and eventually the
grievance was taken to arbitration.
During the processing of the grievances, including the
arbitration proceeding, the Union requested certain in-
formation (as considered more fully hereinafter), including
the actual tests used in the examination of the applicants
and the scores each of them made. These were refused by
Respondent basically on grounds of confidentiality, as
discussed in more detail later. The arbitrator held that he
had no authority to order Respondent to give the Union
the information sought. Respondent also asserts (and the
Union denies) that the arbitrator also held that the
information sought by the Union was irrelevant to the
disposition of the grievance.
The arbitrator, as we shall see, directed that Respondent
should give further consideration to three applicants who
fell below the Respondent's 10.3 cutoff mark, and
otherwise denied the Union's grievance. Thereafter, Re-
spondent asserts that it considered the three applicants as
directed by the arbitrator, found that one had additional
qualifications that overrode his failure to make the cut-off
score, and selected him for the position of instrument man
B at the Monroe power plant. The Union protested that all
three should have been selected. This issue has been heard
by the arbitrator, but no decision on the issue has been
made.
As has been noted, the major issues involved here
concern whether Respondent should give the Union the
actual examination tests which were administered to the
job applicants and the scores each of them made on the
tests . Respondent asserts that it was justified in refusing to
give the Union this information because it was not
"relevant or necessary for the purpose of pursuing [the
grievance] or for any other reason." Respondent also
contends that these matters are confidential and that
disclosure of the actual tests given would utterly destroy
the future use of the tests and the efforts Respondent has
made to make sure that the tests are valid for the purpose
used.
B: The Tests
For- some time Respondent has been engaged in the
process of testing employees for promotion into certain
trade classifications in an effort to determine in advance
(that is, to predict) whether they have a potential to learn
and perform well in the new classification. These tests are
not designed to test the skills or knowledge of the applicant
which may be related to the job, but the capacity or
aptitude of the employee to be trained and to do the job
efficiently. These tests have been constructed or assembled
by the industrial psychology division of Respondent's
employment department. Respondent has not extended
this testing procedure to all the trades or classifications in
which it might be, used. However, in about 1958, because of
the significant importance of the instrument man classifi-
cation, the industrial psychology division, apparently using
5 In some instances it was indicated that the psychologist might
construct his own test questions.
6 See also , Dunnette, Personnel Selection and Placement (Wadsworth
the validation procedures discussed below, assembled a
battery of three tests to be given to applicants to that
position in Respondent's operations. Nevertheless, prior to
the latter part of 1969, supervisory personnel responsible
for the instrument man functions complained that the
battery of tests used did not provide competent men. In the
latter part of 1969 and the first part of 1970, the industrial
psychology group began a process of revalidating the tests
being given for promotion into the, instrument man
classification. This process of validating such psychological
tests , as described in the record, is as follows: In one stage
of the process the psychologist, after carefully studying the
job function involved in depth and in detail, with
assistance from supervisors of that function, would select
certain job tasks that were considered to be representative
of the job as a whole in range and difficulty. In the case of
the instrument man job this consisted of 23 job tasks
(Resp. Exh. 13). Based upon these job tasks, supervisors of
the instrument men were asked to mark the incumbent
instrument men as to how each of them performed on the
job. From these reports, the psychologist rated the
incumbents on a numerical scale on the basis of their
competency. At the same time, according to Dr. William L.
Roskind, Respondent's director of industrial psychology,
the psychologist, as a result of his analysis of the job,
"would have some hypothesis about which aspects of the
job, which aptitudes can be measured, which aptitudes
would, in fact, predict successful performance on the job,"
and he "would then go to the catalogues of tests by
research and so on, and look for tests that would measure
the aptitudes . . . that you hypothesize [are] relevant to
that job." 5 This battery of tests selected by the psycholo-
gist would then be given to the incumbents who had
already been rated by supervisors and the psychologist on
their performance on the job. As stated by Dr. Roskind,
". . . if we picked out six tests [that] we would hypothesize
would, in fact, produce performance ..., in running one
of these validating studies ..., we would determine which
tests actually do predict performance. Which ones will, in
fact, predict the high performance individuals and which
the low [performers ]. . . . Those tests on which the poor
performers did poorly and the high performers did well
would be the test that we would select for use in selecting
[test ] batteries for the future."
In summary, then, when the results of such a battery of
tests administered to a representative group of employees
already on the job compare favorably with the perform-
ance of the incumbents on the job as rated by their
supervisors and the psychologist, the tests are considered
valid (that' is predictive of future performance on the job.) 6
As a result of pursuing this process, about early 1970,
Respondent's industrial psychology group decided that a
battery of two standardized, widely used tests were valid
Pub. Co. 1966). It is also to be noted that in scoring the results of the tests
given, the psychologist apparently does not use raw scores , but weighs and
correlates the scores among the various tests given.
THE DETROIT EDISON COMPANY 1027
for the purpose of statistically predicting which employees
would be likely to do well in the instrument man job.7 A
report of the methods that were followed to arrive at this
decision was prepared (Resp. Exh. 13). In 1972, Respon-
dent employed an independent testing firm which revali-
dated Respondent's study and issued a written report as to
its findings (Resp. Exh. 14).8
The answers to the tests are of a multiple choice variety,
the applicant marking his choice on the test sheet itself.
The scoring is done by means of a key superimposed on the
test sheet. It appears that Respondent seeks to avoid any
subjective influence in the actual scoring of the tests. It is
admitted that human error does occur in the scoring of the
tests., though Respondent seeks to correct this by recheck-
ing.
The cutoff score: As previously noted, when the instru-
ment man battery of tests was administered to the
applicants for the position involved in this case, those who
made a score of less than 10.3 were rejected by Respondent
from further consideration. Exactly when this cutoff score
was established and why this particular point was selected
is less than clear from the material presented in this record.
Since the original 10 applicants from the Monroe plant
were rejected for failure to meet that standard, it is
assumed that the cutoff point was selected at the time the
test battery was selected, though there is no specific
reference to that in Respondent's exhibits 13 and 14. The
discussion in the arbitrator's decision (based on material
not in the present record) also indicates that the cutoff was
based on the performance of the incumbents in 1969-1970,
used to validate Respondent' s testing program. The
arbitrator found, as considered hereinafter, that Respon-
dent in selecting a point which tended to maximize the
probability that the applicants selected would succeed,
"did more than eliminate only those who have no chance
of succeeding," it "increase[d] the number of people who
were rejected, some of whom would have succeeded."
While the arbitrator found that the setting of the score at
10.3 was not "in itself arbitrary," he was convinced that
"the manner in which the test score [was] applied does
border upon arbitrary action."
It is noted that, in disposing of the issues in Stamps v.
Detroit Edison, supra, involving other psychological test
batteries used by Respondent in screening employees, the
court came to a similar conclusion, stating (365 F.Supp. at
118):
None of the test batteries herein issue were demonstrat-
ed to be administered with cut-off scores which are
reasonable in that they screen out only those applicants
likely to possess insufficient ability to perform on the
job. On the contrary . . . the cut-off scores were
demonstrated to be so high as to reject applicants
whose scores are equal to the scores of employees who
have been sufficiently able to perform in the past. The
continued use of these test batteries, even if demon-
7 The two tests, each of which'is apparently sold commercially by certain
psychological organizations, are 1) The Minnesota Paper Form Board Test,
and 2) The Engineering and Physical Sciences Aptitude Test (EPSAT). One
test previously used as part of the battery, since 1958, was dropped
8 This revalidation appears to have been part of Respondent's efforts to
prepare for litigation in which it has been involved under the Civil Rights
strated to be valid predictors of job success, without
adjusting their cut-off scores to a more reasonable level
is unlawful.
C. The Contract Provisions
Two sections of the applicable collective-bargaining
agreement relate to the promotion of employees. In
pertinent part, art. VII, sec. 13 provides: "In promotion of
employees . . . to classifications within the same bargain-
ing unit, seniority will govern whenever reasonable
qualifications and abilities of the employees, being consid-
ered are not significantly different. `Significant difference'
shall be `head and shoulders difference,' . . ." Art. VIII,
sec. 38(b), similarly provides, in pertinent part: "If such
vacancy is not filled by a member of the bargaining unit,
notice of the vacancy shall be posted in other bargaining
units of the same department. . . . If the reasonable
qualifications and abilities of the employees being consid-
ered as a result of this posting are not significantly
different, total length of service-in the Company shall
govern. `Significant difference' shall be `head and shoulders
difference'...." By "head and shoulders" difference, the
parties seem to mean a substantial or obvious difference,
more than a shade of difference, among the men
considered.
D. The Grievance Process
In the grievance filed by the Union, filed January 20,
1972, it is asserted that "the testing procedure used was
unfair in filling the six vacancies in the Instrument Shop.
The bidders from Monroe Power Plant should have been
selected."
In Respondent's written reply, dated January 21, 1972,
Fred J. Locke, technical engineer, noted that "None of the
Monroe Power Plant grievants who were by-passed .. .
met the selection standards of the Instrument Repairman
Aptitude Test.... Since they did not meet the required
posted qualifications for this test, they were not selected."
The minutes of the first step meeting between Respon-
dent and the Union on the grievance, dated February 22,
1972, prepared by Respondent as required by the agree-
ment, show that the Union protested the fact that the test
was adopted without consultation with the Union, which
was characterized as an arbitrary action by Respondent,
and requested that it be informed of the cutoff score on the
new and the old tests, as well as the difference between the
two tests. The Union was informed that the new tests were
the same as the old except that one specific test had been
dropped from the battery. According to the' minutes, the
Union was told that the cutoff score ("the point of
acceptability") was "arrived at through the use of a
formula, there is not a percentage score as such," and that
when the present battery of tests was decided on, "the
cutoff score was adjusted. This adjustment was validated
Act of 1964. See Willie Stamps v. Detroit E4ison Co., 365'F.Supp. 87 (D.C.
Mich., 1973). The Union was a defendant in that case . It would appear,
however, that in making this revalidation, the employees were not retested,
contrary to some indications in the record, for Dr. Roskind, Respondent's
director of industrial psychology, testified that the independent company
did not actually utilize the tests being validated.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through a sample of 33 employees presently performing the
work as related to their test results." 9 It appears that the
Union was not given the cutoff scores requested. At a later
point, the minutes state that the Union protested that the
new cutoff point was "not only unfair, but unknown."
During the course of the discussion, the minutes state that
"The Union asked if [Respondent] would furnish scores of
the Monroe personnel. Management felt that furnishing
the results would not accomplish anything."
By letter dated February 25, 1972, Respondent denied
the grievance on the ground that the tests given were valid
and, Respondent was satisfied that the cutoff score was
"justifiable."
The minutes of the step 2 meeting on this grievance,
dated May 19, 1972, prepared by Respondent, reveal the
parties taking substantially the same positions as in the
first step meeting, including discussions on the merits of
the grievance with which we are not concerned here. The
last item noted: "8. The Union has asked for test scores,
but they haven't named the grievants other than the senior
men at the plant."
By letter dated May 24, 1942, Respondent again
reviewed the facts, found no violation of the agreement,
and denied the grievance.
The Union appealed this decision to the president of
Respondent, and, on August 29, 1972, the president's
delegate replied, by letter, in pertinent part, as follows:
A second complaint of the Union is that the men at
Monroe were disqualified because of tests and the
Company did not demonstrate a "head and shoulders"
difference between them and those who were selected.
They also point out that changes in the test standards
were not discussed with them, nor were they informed.
A basic qualification is a standard that must be met
before a comparative evaluation can be made on a
"head and shoulders" basis... .
In this instance, one basic qualification was that
applicants have been found acceptable under a new test
standard established in 1970 after the requirements for
the position of Instrument Man had been restudied and
reevaluated. It has been the custom to inform the
Union test revalidation studies, but in this case the
explanation and information to the Union were
inadvertantly overlooked.
The grievance is denied.
Although it appears that Respondent's position, as set
forth in the above letter, is that the aptitude tests constitute
an "entrance qualification" for the job (Resp. Exh. 7)-and
not a method of making a "head and shoulders" compari-
son among the applicants required by the contract-
Respondent's testimony at the arbitration hearing indicates
the contrary. Thus, Emil Ruch, director of union relations,
Lawrence E. Kanous, who was instrumental in setting up
the instrument man aptitude test , and Dr. Roskind, all
testified that passing the tests constituted a "head and
shoulders" difference, emphasizing the importance of the
cutoff score. Kanous asserted, therefore, that an applicant
who made one point over the cutoff score would be head
and shoulders over an applicant who made one point
under the cutoff. At another point, Kanous testified that
the test should be only a part of the determination whether
an applicant received the job, not the sole determinant.
Notwithstanding the letter quoted above, the terms of the
notice posting the job, counsel's statement to the arbitra-
tor, and the general trend of the record, Dr. Roskind
testified in the present hearing that the aptitude tests were
to be considered as only one factor in the selection
process.1°
By letter dated,October 27, 1972, the Union requested
arbitration of the dispute between Respondent and the
Union concerning this grievance.
E. Union- Requests for Information
As previously noted, the complaint alleges and the
answer admits that the Union requested the Respondent to
furnish the Union with the aptitude tests administered to
each of the employee applicants for the instrument man
position, including those selected and not selected, the
examination papers of those applicants, and their test
scores . Respondent's brief seems to question the adequacy
of the requests for the "examination papers," however.
The record shows that the Union through Mr. Lewis,
union director of services, made its first written request for
information in connection with the instrument man
grievance on March 5, 1973, in preparation for the
arbitration hearing which the Union had requested. In that
letter the Union requested "the following exhibits and
material":
s s s * s
It is evident that the Union does not have a complete
understanding of test validation, establishment of
standards, development of test batteries, and similar
information relating to the Company's testing program.
To that end, I am directing that a meeting for Union
Officers and Chairmen be arranged to enhance their
understanding of the Company's objectives in the
testing area. A mutually acceptable date will be worked
out prior to November 1, 1972.
9 "Presently" apparently refers to 1970, when the test was validated as
Respondent asserts.
10 Compare Respondent counsel 's statement to the Union in his letter
dated July 18, 1973 : "1 appreciate the fact that you are questioning whether
1. The actual battery of tests used in the captioned
matter.
2. The method of scoring or grading and the actual
criteria for finding "acceptability" or "recom-
mended" or "not recommended."
3. A report on the test validation.
4. a report by the National Compliance Company,
which, as I understand it, consulted upon, and
or not there is a 'head and shoulders difference ' between those who were
selected for the job and those who were not. We, of course, look at the issue
as being one of whether the applicants meet the minimum qualifica tions for
the job."
THE DETROIT EDISON COMPANY
reviewed the Company's whole testing system or
apparatus.
In response, Respondent's counsel, by letter dated
March 15, 1973, confirming an earlier telephone conversa-
tion, advised that Respondent would meet with Lewis on
April 2, 1973, adding, however, "As I explained, the actual
battery of tests used in the testing program are confidential
and in order to insure the future integrity of those testing
procedures, they cannot be released. Mr. Roskind had
indicated, however, he would be pleased to discuss the
testing procedures with you, as well as explaining the
validation procedures, etc."
At the meeting on April 2, the Union was given a copy of
Respondent's Report of the study made in 1970 on the
instrument men tests (Resp. Exh. 13) and the report made
by the National Compliance Company on these tests
(Resp. Exh. 14). Respondent refused to give the Union the
actual scores made by the applicants or the battery of tests
used. No other information concerning this meeting
appears.
By letter dated May 23, 1973, to Dallas Jones, the
arbitrator designated to hear the grievance in this matter,
the Union requested the arbitrator to have the Respondent
supply the Union with "copies of the actual tests used by
16 candidates who applied for the Instrument job," stating,
in pertinent part:
We have previously asked the Management of Detroit
Edison Company to supply us with the actual tests
which were the instruments to effectively foreclose
grievants in the above matter from entering training,
trial or promotion to Instrument Man classifications at
the Monroe Plant of Detroit Edison... .
... the Arbitrator has the right and duty ... to
order a party to produce certain records necessary to
the case of the other side and relevant to the case at
bar....
We regard the actual tests as essential, and, perhaps
key, to our case... .
Much has been said about the secrecy and confidential-
ity of these tests. . . . What this advocate needs to
know is if the questions on those tests are reasonably
relevant to the Job being considered. This could be an
important point in our defense.
As set forth hereinafter, the arbitrator denied the
Union's request.
After the close of the initial arbitration hearing on this
matter, the Union continued to seek such information.
Respondent's letter dated July 10, 1973, refers to union
letters dated June 2 and 26, and responds, in pertinent part,
as follows:
We have made a diligent attempt to provide you with
all the information you will need in order to have a
i At the arbitration hearing, Respondent gave the scores made by
1029
competent psychologist properly analyze these tests
and the testing procedure.
As I advised you at the arbitration hearing, the actual
test score of the employees have always been consid-
ered extremely confidential by the Company ... none
of the employees involved have given the Company any
express permission to release this information. There-
fore, as we previously indicated, we must respectfully
decline your request for that information.... during
the hearing we did present . . . the range of actual
scores attained by the grieving employees who are
involved in this case."
With respect to your request for the actual tests
themselves, again I would advise you that these have
been considered confidential by the Company and we
could not comply with your request without destroying
the future validity of those tests. Furthermore, I am
advised by Mr. Roskind and Mr. Kanous that such
disclosure would be violative of Principle 13 of the
Ethical Standards of Psychologists. From a practical
standpoint, which I am sure you can understand, the
Company has spent tens of thousands of dollars in
validating these studies and tests which were utilized in
this case. . . . Therefore, from all standpoints, it is
necessary that we maintain the confidentiality of those
tests. Furthermore . . . a competent, trained psycholo-
gist can properly study and evaluate the tests and the
validation procedures with the information you already
have . . . and, furthermore, even if he [had the tests],
they would be of no particular use in reaching a
decision as to whether or not the tests were properly
validated and utilized.
In this letter, Respondent did enclose material in
response to the Union's request for information pertaining
to the battery weights and method of scoring both the
Minnesota Paper Form Board Test and the EPSAT test.
On August 6, 1973, in recognition of the Union's concern
over its position if the Board ordered disclosure of the
information sought contrary to a different opinion of the
arbitrator, the parties entered into a stipulation, later
acknowledged by the arbitrator, that "if the Company ever
in fact is ordered to disclose the tests and does in fact
disclose the actual tests as a result of a final court order,
then [Respondent] would be agreeable to having the
arbitrator listen to any additional argument or evidence
based upon the disclosure of the tests which might affect
his decision with respect to the substantive issue in the
grievance. In view of the fact that ultimate disclosure
through a court test would take several months or possibly
years, . . . [We] feel ... you ought to decide the issues
and then let the chips fall where they may with respect to
the National Labor Relations case."
F. The Arbitration
The initial hearings in the arbitration case were held on
May 23, 24, 30, and 31, 1973. According to the arbitrator's
certain participants in the test, but refused to state which applicants made
which score.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision, however, the hearing was not declared closed
until September 18, 1973. (Resp. Exh. 12) During the
intervening period as noted above, the Union continued to
request information concerning the tests and scores, and
the parties agreed that the arbitrator should proceed to
decision notwithstanding the pendency of the instant
matter . On July 23, 1973, the arbitrator ruled that he did
not have the power to require that the requested informa-
tion be furnished to the Union. On December 3, 1973, the
arbitrator issued his decision, stating, in pertinent part
(Exh. 12):
... the Company's position is that it has the right to
establish minimum, reasonable qualifications for a job,
including the attainment of an acceptable score on a
reliable and valid test, and that Article VII, Section 13
does not come into play until these qualifications are
met. The Union's position is that the contractual
mandate requires an examination of all relevant
information to determine if an employee is "head and
shoulders" above another employee and that an
employee cannot be disqualified on the basis of one
item.
* * *
A great deal of the testimony and evidence was
concerned with the test battery itself. The Union
questioned the validity of the test by reference to the
type of questions asked. It was to further this line of
questioning that the Union desired a copy of the test.
But this was simply a questioning of the face validity of
the test.12
Such questions, even if taken from the zest itself, prove
nothing. Face validity does not prove or disprove the
validity of the test in determing the aptitudes necessary
for successful job performance. There would be
justification in the Union's request if the test were
measuring job knowledge.
In support of its argument for disclosure of the test, the
Union cited Central Soya Company, 41 LA 1031.
Frankly, the Arbitrator believes this decision was in
error if in fact the tests used were standardized aptitude
tests of the type here in question. The Arbitrator
believes a better precedent is Wisconsin Electric Power,
36 LA 46901. In short, the Arbitrator does not believe
that the Union's position was damaged in any way by
lack of access to the test.
... one of the basic issues involved in the dispute [is)
does the Company have the right to establish mini-
mum, reasonable qualifications for a job? The Arbitra-
tor believes that the Company does have that right.
While Article VII, Section 13 gives weight to seniority
"whenever reasonable qualifications and abilities of the
employees being considered are not significantly
different," it does not, on its face, preclude the
establishment of reasonable qualifications to perform
the job before the measurement of qualifications and
abilities begins.... The testimony adduced at the
hearing indicates that the Company has resisted every
attempt by the Union to restrict that right.
This holding does not mean, however, that the
Company can by-pass employees in a unit who meet
the minimum qualifications in the hope of obtaining
better qualified employees in other units. It is only
when none of the bidders meet the reasonable
established qualifications for the job, that the Company
can move to the next step of the procedure.
* * * *
There is no doubt that the Company has established
and maintained the right to use tests as a measure of an
employee's qualifications-the Union concedes this
point. The Union has, however, raised several questions
not only in regard to the use of the test, but in regard to
the test itself.
12 Both before the arbitrator and at the hearing in this matter,
Respondent's witnesses asserted that a layman could not tell whether the
questions on the tests were job related, and therefore the questions had no
"face validity." Those witnesses also asserted that qualified industrial
psychologists do not need to see the test questions either in order to
determine whether the test is "valid ," but that this can be done by study of
statistics and published reports about the tests.
* * * * *
There is no doubt that as tests go, this particular test
has a high degree of validity. The way in which it was
developed and is used also overcomes many of the
objections raised by arbitrators and industrial relations
practitioners; that is, the test was developed especially
for this job (job related), and it has been properly
validated.13 In addition, and very important, the
instant test is not used to compare one employee
against another in terms of the score attained.
* * * * *
Nevertheless, tests are not perfect predictors of suc-
cess-and the Company does not claim otherwise-
even when they have high validity as here; they simply
increase the probability of successful performance if a
certain score is attained. But even when that score is
attained there will be people who will not succeed, and
there will be people who would have succeeded even
though their scores were below the cut-off point. This
point is illustrated by the scatter diagram contained in
the Company Exhibit No. 1.
This diagram makes clear that individuals who score
less than 9.2 (or 9.3) have virtually no chance of
succeeding. It is also clear that by establishing the cut-
off score of 10.3 the accuracy of the prediction is
increased- 13 of the 16 above average performers
13 However, it is noted that the battery of tests involved here were
standardized tests. There is no proof in the record that they were developed
to test the instrument manjob. The tests were selected by the Respondent's
industrial psychology group because in their personal judgment it was
thought that these tests would predict which employees would do well on
the job.
THE DETROIT EDISON COMPANY 1031
scored 10.3 or better while 13, and perhaps 14, of the 17
below average performers scored less than 10.3. But it
also increases the number of people who are rejected,
some of whom would have succeeded. Thus, between
9.3 and 10.3 there were three who were rated above
average and six who were not.
If the cut-off score had been set from 9.0 to 9.3, the
Arbitrator would have no difficulty in saying that if an
individual did not attain that score he should receive no
further consideration; one could then compare the cut-
off score, as the Company has done, to having one
hand or two, being color blind or not, etc. But that is
not the case here. By setting the cut-off score at 10.3,
the score which produces the best results in terms of
predictability, it does more than eliminate only those
who have no chance of succeeding.
The Arbitrator does not believe that the setting of the
cut-off score at 10 .3 was in itself arbitrary; this has
been done for good reason as noted. But the Arbitrator
is convinced that the manner in which the test score is
applied does border on arbitrary action. There is no
doubt-although there were some late protestations to
the contrary-that those individuals who did not attain
an "acceptable" score were removed from any further
consideration. This seemingly differs from testimony
given by the Company in Court as well as testimony by
the Company's psychologists concerning the proper use
of tests... .
... Based upon the evidence, it is clear that an
individual who scores 10.3 is far more likely to succeed
than one who does not. It clearly indicates a significant
difference between two such employees unless there is
something in the individual's background which would
offset this lower score. In fairness to the senior
employee, there should be such an investigation;
otherwise seniority is undermined.
... Certainly, such experience, work or educational,
cannot offset scores of below 9.3. In fairness to those
grievants who scored between 9.3 and 10.3, however, it
seems to the Arbitrator that the parties should review
their qualifications to see if-they do have qualifications
that were not fully considered and that would offset
their failure to attain a 10.3 score.
s * s s
Award
... Company did not violate the agreement by
establishing . . . an "acceptable" score on the Instru-
ment Man test battery as a general qualification for
selection into the Instrument Man B classification. The
attainment of such a score creates a presumption of
"significant difference" over the failure to attain such a
score, unless offset by relevant educational or job
experience. The Company is obligated to consider such
evidence and cannot disqualify an employee without
14 As previously noted, in a commumcation from Respondent to the
Union, it was stated that the Respondent had spent "tens of thousands of
such consideration. Certain of the grievants, as indicat-
ed hereinbefore shall have their qualifications reviewed
to determine if such qualifications offset their failure to
attain an "acceptable" score. In the event it is found
that any or all of these grievants have the qualifications
necessary to offset the "not recommended" score they
received on the aptitude test, they shall be promoted
into the Instrument Man B classification.
Respondent thereafter determined that three applicants
for the position had received scores on the tests between
9.3 and 10.3, and reconsidered them on the basis of their
education and work experience. Respondent decided that
one of these men had a background that offset his failure
to attain the 10.3 cutoff score and promoted him to the
instrument man B position. On July 18, 1974, the arbitrator
heard the Union's protest that all three men should have
been promoted. No decision has been, rendered on this
rehearing. During the course of this reopened hearing, the
arbitrator stated that in his opinion the Union was entitled
to receive the specific scores attained by the applicants on
the tests in order that the Union be able to "police the
contract." This information has not been given the Union.
G. Respondent's Positions
As has previously been noted, Respondent contends that
the tests given for the instrument man B position and the
specific scores made by named applicants should not be
given to the Union for the following reasons: It is asserted
that: (1) the validity of the tests cannot be determined from
observation of the questions in the tests, but only by study
of the research manuals prepared by publishers of the tests,
and the statistical and other data prepared by those who
administered the tests in situations which, it is claimed,
validate the tests (as described hereinabove in section B),
and, therefore, the Union does not need the tests; (2) the
test questions are confidential, and if revealed to persons
other than qualified psychologists would lose' their value,
for the tests depend, in part, "on the naivete" of those who
take the tests; 14 (3) the scores of the individual applicants
are also confidential, Respondent assertedly having ad-
vised the applicants that they would not be disclosed.
Respondent also asserted some concern that those employ-
ees making low scores would be embarassed and possibly
harassed by other employees; and (4) it would violate
certain principles of the code of ethics of the American
Psychological Association to reveal the contents of the
tests or the scores. In pertinent part, these principles state:
"Psychological tests and other assessment devices, the
value of which depends in part on the naivete of the
subject, are not reproduced or described in popular
publications in a way that might invalidate the techniques.
Access to such devices is limited to persons with profes-
sional interests who will safeguard their use." `"Test scores,
like test materials, are released only to persons' who are
qualified to interpret and use them properly."
Respondent presented two witnesses, Dr. Roskind of its
own staff, and Dr. Marvin D. Dunnette, professor of
psychology at the University of Minnesota, in support of
dollars in validating these studies and tests.... "
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the positions noted above. In general these witnesses, or
one of them, supported, or tended to support, the positions
set forth above. There are certain significant qualifications
which should be noted, however:
(1) With respect to the term "validity," the testimony of
the witnesses soon made clear that they were using the
term to describe tests that would fulfill employer's
purpose-to maximize the probability that those who
passed the tests would do well on the job. When it was
suggested to Dr. Dunnette that the studies and statistics
that would satisfy him that the tests were valid for the
employer's purpose might not suffice to inform employees
with respect to how they were to qualify for promotion-
an important part of their working conditions-Dr.
Dunnette stated that he had not given any thought to that
problem, but agreed that he did not believe in "secrecy as a
policy" in dealing with employees concerning their
working conditions.15 Dr. Dunnette finally concluded that
the major, or the basic reason for not giving copies of the
tests to the Union was that if the tests were given "to
potential examinees,- the tests would quickly become
worthless," "the security of the test demands it not be part
of the public domain." 16
A similar dichotomy arose when Dr. Dunnette sought to
describe the difference between the term "validity" and the
term "job related" as applied to the tests at issue. It is
perfectly plain that though the two concepts may overlap,
they are not in all respects the same. The distinction, as
given by Dr. Dunnette, tended to become confusing, as in
the following testimony:
Q. (Mr. Houghton) Earlier . you were asked to
[compare] the term validity and job related. And then
you said that job related was a broader term.... How
is job related different than the way you've been using
validity?
A. I think somethings can be said to be job related
though not necessarily be shown to be job related in a
statistical study. An obvious, example I guess, would be
that - I think medical school education would be
related to the job of being a physician, but I'm not sure
that I would talk about medical school education being
valid, necessarily, to be a physician. It's just, you-know,
necessary. So I think that job related term can be broad
in that it connotes a number of other kinds of
prerequisites.
A. As I've been using the term validity it is one
important part of job related.
Q. Okay, so it's a part of, although not quite as
broad as job related?
A. Yes.
15 It is noted that when Dr. Dunnette was asked if copies of the tests
would assist the Union in determining whether the test were valid, he replied
that "I would not regard the test as helpful to me in making that ,judgment "
I believe that the transposition of terms was careful and deliberate.
16 It is noted that Dr. Roskand, who made the decision not to give the
test copies to the Union, testified that he made the decision only on the
basis that submitting the tests to the Union would (1) destroy "test security"
in that the tests would become known to applicants, and (2) violate
Both Dr. Roskind and Dr. Dunnette agreed that if
different questions were used, or different tests were given,
then those selected by Respondent in the first instance,
different results would be expected. In such case, it is said
the tests would have to be revalidated.
It is also of some significance, in assessing Respondent's
contention that the actual tests are not needed in order to
determine whether the tests are discriminatory in their
application, that the Department of Justice, in processing
the civil rights suit against Respondent also insisted on
seeing the actual tests given and actual scores made on the
tests. According to Dr. Roskind, the tests were finally
submitted to "their industrial psychologist [w]ith a stipula-
tion that he would protect their confidentiality." Respon-
dent also submitted test scores of those employees who
signed releases.
(2) The contention that employees making low scores
might be embarassed and harassed is based on speculation
from certain vague , hearsay testimony given by Dr.
Roskind. It is admitted that the employees would be aware,
before the arbitration, which applicants had made a score
less than 10.3, and after the arbitration, those who made
less than 9.3.
(3) Respondent's counsel also indicated at the hearing in
this matter that, in order "to appease the Union in this
case," Respondent "would be willing to disclose the tests to
a qualified industrial psychologist ... for a determination
on behalf of the Union.". Indeed, counsel stated Respon-
dent "has offered" to do this. However, I am not aware of
any evidence showing that such offer was made and it is
not referred to among the 50 requested findings of fact in
Respondent's brief. Indeed, the tenor of Respondent's
responses to the Union's requests, as set forth in counsel's
letter dated July 10, 1973, was that the Union's psycholo-
gists would not need to see the tests.17
(4) At the hearing, though not stressed in the brief,
Respondent took the position that it would give a ,detailed
analysis of any employee's performance on the tests to the
employee, but would not do this for the Union unless the
individual authorized it.
Subsequent negotiations: The issues with which we are
concerned here arose under the collective-bargaining
agreement which expired on June 12, 1972. It is Respon-
dent's contention that in the bargaining for a succeeding
contract in 1972, the Union sought provisions which would
give the Union access to psychological tests ' in the future,
but that a new contract was agreed without any change in
the provisions involved here, upon the Respondent's
commitment to discuss these matters with the Union
thereafter. I am not satisfied that the evidence in the record
justifies the findings sought by Respondent on this point.
The matter was first brought up by Respondent on redirect
examination of its last witness, Dr. Roskind, who admitted
to only hearsay knowledge of the situation.' Counsel also
professional ethical standards. This conforms to Dr. Dunnette's final
position.
17 On the other hand, Lewis, the Union's representative, testified at the
hearing that "turning [materials ] over to a professional psychologist doesn't
sit well with us. We think the people on the firing line ought to understand
the criteria put forward for promotion . It shouldn't be sent to some
professional psychologist. Why shouldn't the [union ] chairman of each
plant understand the criteria for promotion? This is our problem."
THE DETROIT EDISON COMPANY
referred to testimony in the transcript of the arbitration
hearing on the point. However, General Counsel was not a
party to that proceeding, and had no opportunity to cross-
examine witnesses with first-hand knowledge of the facts in
that proceeding, or properly develop the matter. Indeed, it
is far from clear what point Respondent is seeking to make.
Counsel agreed at the hearing that "certainly it can't
.constitute waiver" of the Union's legal rights. Although
Respondent requested findings of fact on the point, it
made no argument in its brief that the facts had any
bearing on the resolution of the issues in this case. In the
circumstances, further discussion of this point does not
seem warranted.
H. Analysis and Conclusions
It is here contended that Respondent violated the Act
when it refused to disclose to the Union: (1) the
psychological tests administered to employee applicants
for promotion to certain jobs in the bargaining unit
represented by the Union, and (2) the scores made on the
tests by the specific applicants, where Respondent disquali-
fied certain of the employees for promotion solely on the
scores made on those tests. The Union sought the
information for the purpose of processing the grievances of
employees thus rejected by Respondent for promotion.
While the Union's asserted right to this information was
under consideration by the General Counsel on the charges
filed in this case, the merits of the grievances were
arbitrated under the provisions of the bargaining agree-
ment between the Union and Respondent. The parties had
stipulated that, notwithstanding the pendency of this case,
the matter should proceed to arbitration, and that should it
be held finally as a result of this proceeding that the Union
should be given the materials which it sought, contrary to a
decision by the arbitrator, the arbitration proceeding might
be reopened to consider any union argument based on this
information. Inasmuch as the parties have agreed that the
arbitrator's decision on this point should not be final, it is
necessary to determine whether Respondent violated the
Act by refusing to submit the information requested.
It is well established that a labor organization which is
obligated under the Act to represent employees in a
bargaining unit with respect to the terms and conditions of
their employment is entitled, by operation of the statute,
upon appropriate request, to such information as may be
relevant to the proper performance of that obligation.
Curtiss-Wright Corporation, Wright Aeronautical Division v.
N.L,RB., 347 F.2d 61 (C.A. 3, 1965); Stahl Specialty
Conpany, 175 NLRB 129 (1969); Cowles Communications,
Inc., 172 NLRB 1909 (1968); see also N.L.RB. v. Acme
Industrial Co., 385 U.S. 432 (1967), where the Supreme
Court held, at' 437, that in requiring an employer to furnish
information to the Union for the purpose of processing a
grievance to arbitration, the Board acts "only upon the
probability that the desired information is relevant, and that it
would be of use to the Union in carrying out its statutory
duties and responsibilities." (Emphasis supplied.)
is [n Acme Industrial, supra, where information was sought to assist a
union in processing grievances , the Supreme Court noted that a liberal
standard of relevance should be applied, 385 U.S. at 437. The cases cited by
Respondent are not to the contrary.
1033
1. Relevance of the information sought
Respondent, at the outset, contends that the complaint
should be dismissed because the Union has not shown a
need for the information which Respondent has refused to
give the Union. I find this argument to be without merit.
The Union is entitled to data which is "reasonably
necessary to [its] role as bargaining agent in the adminis-
tration - of [the] collective-bargaining agreement"; "wage
and related information pertaining to employees in the
bargaining unit is presumptively relevant, for, as such data
concerns the core of the employer-employee relationship, a
union is not required to show the precise relevance of it
unless effective employer rebuttal comes forth." See
Curtiss-Wright Corp. v. N.LRB., supra at 68, 69. See also
Cowles, supra at 1909. As the court in Curtiss-Wright
further stated: "Reasonable necessity for the union to have
relevant data is apparent; necessity is not a separate and
unique guideline, but is directly related to the relevance of
the requested data" 347 F.2d at 69.18
The information here sought concerns criteria unilateral-
ly adopted by Respondent and used to determine which
employees should be given an opportunity for, or be
selected for promotion. Criteria for promotion constitute a
significant element in an employee's working conditions,
for they determine whether the employee will be advanced
in position, obtain better working conditions, and qualify
for higher wages. They are, therefore, clearly wage related
and go to the core of the employer-employee relationship.
Such criteria are mandatory subjects of bargaining, see,
i.e., Clifton Precision Products Division, Litton Precision
Products, Inc., 156 NLRB 555 (1966); Houston Chapter,
Associated General Contractors of America, Inc., 143 NLRB
409 (1963), and, in fact, standards for promotion were
treated in the bargaining agreement in effect at the time the
grievances in this matter arose. In the circumstances,
therefore, I find that the information sought by the Union
in this case was presumptively relevant. It is necessary
therefore, to consider Respondent's evidence in asserted
rebuttal of this presumption.
Respondent strongly asserts that access to the test
questions would be of no assistance in determining the
validity, of the tests given, but that statistical and related
data which are available to the Union are sufficient `to
prove the validity of the psychological tests for the purpose
used. Therefore the Union does not need the tests. The
claim, however, stretches this concept of statistical validity
too far. The statistics may, indeed,`tend to show that the
tests are valid to serve the employer's purpose: i.e., they may
serve to identify those employees likely to do well on the
job. See Psychological Testing and Industrial Relations,
Hagglund and Thompson Eds. (Center for Labor and
Management, College of Bus. Adm., Univ. of Iowa,
Monograph, 1969) Ch. 1.19 However, the statistics do not
serve to inform the employees, or their representative,
whether the tests are truly job related or contain objection-
able distortions (it is admitted that "valid" and "job
related" are not coextensive), whether they have built-in
19 It is noted , however, that an earlier set of tests, apparently statistically
validated in the same way as the present battery, did not, in fact, work out
as the employer expected.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bias and are, in fact, discriminatory, or whether, in sum,
they tend to undercut Respondent's contract commitment
to promote by seniority where there is no "significant
difference" between the "reasonable qualifications and
abilities" of the applicants for promotion.
In collective bargaining, generally, there is a normal
conflict between the usual employer position that only the
most competent employees should be considered for
promotion and the usual union contention that promotion
should be granted on the basis of seniority. See Psychologi-
cal Testing and Industrial Relations, supra, Ch. II. A
common compromise, as in this case, provides that
seniority shall govern where abilities and qualifications are
approximately equal. It is obvious that Respondent's
testing procedure-which is designed to eliminate all but
the more, or most, competent (or potentially the most
competent)-appears to have a tendency to distort the
contractually agreed-upon standards. I shall consider the
arbitrator's comments on this point hereinafter.
Since the Union was given no opportunity to see the tests
or the questions or participate when the battery of tests was
selected , or when they were administered, or at any time
thereafter, the Union has been deprived of any occasion to
check the tests for built-in bias, or discriminatory tenden-
cy, 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. In short,
however much the statistical data may prove that the tests
are valid for the employer's purpose, there is no evidence
that the statistics are valid to inform the employees of the
criteria required for promotion, or to afford the Union the
data required to protect the employees' rights under the
statute and the contract. Indeed, if Respondent's total
position in this case were sustained, employers using
psychological, testing-which is a fast growing device for
personnel placement-may be enabled, by unilateral
action, to freeze the employees' bargaining agents out of
significant parts-perhaps most-of the promotional pro-
cess.
I deem it quite significant that, although Respondent's
independent expert, Dr. Dunnette, originally testified that
the Union had no need to know the content of the tests
because the statistical data showed the tests to be valid,
when it was suggested that the employees' right to know
the criteria governing their working conditions involved a
totally different concept, Dr. Dunnette stated he had not
thought of that and shifted his position-concluding that
the basic, or major reason the Union should not be given
the tests or the test questions was their asserted confiden-
tial nature . This issue will be considered hereinafter.
It is also worthy of note that when the Department of
Justice was investigating the alleged discriminatory nature
of Respondent's psychological testing under the Civil
Rights Act, the Department was not satisfied ' with the
statistics allegedly showing that the tests were valid, but
insisted on the tests, themselves, which Respondent
supplied to the Department's own psychologist.
Respondent also for reasons of asserted confidentiality
which are considered later in this decision, has refused to
give the Union the test scores made by the specified
applicants for promotion in this matter. Contrary to
Respondent's contention, the arbitrator, who passed on the
merits of the grievances, stated, during the reopened
hearing, after his initial decision, that, in his opinion, the
Union could not adequately "police" the contract without
this information. The arbitrator, in fact, directed Respon-
dent to reconsider its selection process, in part, based on
the scores received by the applicants.
For the reasons stated I find that the record establishes a
"probability that the desired information is relevant and
that it would be of use to the Union in carrying out its
statutory duties and responsibilities." See Acme Industrial,
supra. As previously noted, the Union and Respondent
agreed, in effect, that the Board should not defer to the
arbitrator's opinion on this issue. I have nevertheless given
it careful consideration.
It is important to note, however, that I am not required,
nor do I find that the information sought would be found
determinative or significant, in fact, by an arbitrator
passing on the merits of the grievances. I am required only
to consider whether the information sought has "potential
value" for the purposes for which it is sought, Curtiss-
Wright, supra p. 70. The Union is not required to play "a
game of blind man's bluff" in determining whether and
how to process the employees' grievances. See Acme
Industrial, supra at 438-439. None of us know whether the
contents of the tests will, in fact, assist the Union 2°
Indeed, the arbitrator stated only that he did "not believe
that the Union's position was damaged by lack of access to
the test." However, in the peculiar circumstances before
him, he appears to have had little other choice. Thus, once
the arbitrator determined he had no authority to order
Respondent to disclose the information which Respondent
refused to give the Union, the arbitrator had to hold that
he could proceed without the information, or he would
have been unable to come to a complete decision on the
issues. In fact, the arbitrator was aware at the time that the
parties had agreed that he could leave the issue to be
determined in this proceeding de novo, as I have done.
It may be further noted, to the extent that the arbitrator's
opinion of the significance of the tests to the Union's
purpose was based on his belief that the tests were
conclusive for all purposes because they were statistically
valid for the Respondent's purpose, or was based upon
Respondent's claim that the tests were an entrance
requirement-like the physical requirement that the em-
ployee applicant have two hands and feet-rather than a
method of ascertaining the "qualifications and abilities of
the employees" for promotion (art. VII, sec. 13 of the
bargaining contract), the record before me undercuts those
conclusions. I have previously discussed the first of these
arguments. As to the second, there can be no question, in
my mind, that the tests, and the scores made on the tests,
are designed to and they do test the "qualifications and
abilities" of the employees for the jobs they bid on. It is
true that this is done in a novel way. Traditionally, industry
has looked to the employee's past experience to determine
what he knew and what he could do. This new method
20 As the Board said in Cowles, supra quoting from a leading court data will be relevant except in those infrequent instances in which the
decision, "it is virtually impossible to tell in advance whether the requested inquiry is patently outside the bargaining issues." 172 NLRB at 1909
THE DETROIT EDISON COMPANY
determines what the employee knows and can be expected
to do by means of written tests. The fact that they may not
test job knowledge, as Respondent claims, does not change
this. The bargaining contract speaks only of "qualifications
and abilities" for promotion in a very broad sense. The
tests given by Respondent do measure the qualifications
and abilities of the employee applicants for promotion. The
testimony of at least three witnesses for Respondent before
the arbitrator confirmed this . This evidence, inconsistent
with the arbitrator's opinion, was alluded to by the
arbitrator only in passing. Again, as previously noted, if his
decision were otherwise, the arbitrator would have been
stymied by Respondent's refusal to disclose the tests. (If he
found the tests were an element in qualifying the
employees for promotion, it is difficult to see how the
arbitrator could say the Union did not need them.) These
remarks are not intended to be critical of the arbitration
decision. Labor arbitration is a pragmatic procedure
designed essentially to resolve disputes, not to determine
legal rights under the statute. The decision in that case is
an excellent example of the process. These matters are
raised to indicate that the content of the tests, in fact, do
have a potential to affect the employees' rights under the
contract . The parties have agreed that if Respondent is
ordered to disclose the tests, the arbitrator may still hear
arguments to that effect. The arbitrator has concurred.
2. Confidentiality of the information
Respondent asserts that it should not be required to
disclose the tests to laymen who are likely to disclose them
to potential job applicants, because this would destroy the
validity of the tests and violate the code of the American
Psychological Association. There is inherent in this
position the contention that establishment of a new battery
of tests on each occasion when jobs are bid would be costly
and difficult. Respondent also contends that it should not
be required to disclose the scores made by specific
applicants on the battery of tests here under consideration
because Respondent promised the applicants that the
scores would be kept confidential, because the code of the
American Psychological Association requires that they be
kept confidential, and because Respondent fears that
employees may suffer embarrassment if other employees
know the scores made by the applicants (Respondent
asserts a concern that the applicants would be harassed).
Respondent does say that it is the Company's practice to
discuss with the individual applicant, in detail, how the
applicant did on the tests, upon the applicant's request.
Respondent is also willing, it says, to submit the battery of
tests to a qualified psychologist on the Union's behalf and
to release any individual's score to the Union if the Union
will obtain the employee's written release.
In essence, Respondent here contends that, having
voluntarily chosen a particular form or mechanism to
determine the right of bargaining unit employees to be
promoted, Respondent is now precluded by the very
devices which it adopted from dealing with the employees'
bargaining representative about critical elements of the
promotion process, and will deal only with the individual.
2Il Shell O:1 Company v. MERB., 457 F.2d 615 (C.A. 9, 1972), cited by
1035
Such a program, which freezes out the bargaining repre-
sentative from participation in significant elements of the
promotion process, and seeks to substitute individual
bargaining therefor constitutes a complete negation of the
bargaining process and the rights of employees guaranteed
by the Act. N.L.R.B. v. Medo Photo Supply Corp., 321 U.S.
678 (1944). Those Board and Court cases which have dealt
with similar claims of confidentiality as a basis for refusing
to disclose relevant information, have rather consistently
rejected the asserted defense. See, i.e., General Electric Co.
v. N.L.RB., 466 F.2d 1177 (C.A. 6, 1972)(the company had
promised other companies to keep wage data confidential);
Curtiss-Wright Corp. v. N.L.R.B., supra (job evaluation and
wage data of nonunit administrative and confidential
employees); N.L.R.B. v. Frontier Homes Corporation, 371
F.2d 974 (C.A. 8, 1967) (asserted confidential selling puce
lists); Cowles Communications Inc., supra (company unwill-
ing to link salaries to specific employees because this might
offend employee "sensitivities"); The Electric Auto-Lite
Company, 89 NLRB 1192 (1950) (company claimed it
could not release wage data because employees had not
authorized release); cf. United Aircraft Corp., 192 NLRB
549 (1971) (company not required to disclose employees'
physical incapacities discovered by company physician, in
the absence of relevance "to some particular problem").
Respondent has produced no probative evidence that the
employees' sensitivities are likely to be abused by disclo-
sure of the scores.21 To the extent that odium may be
attached to employee applicants who did not pass the tests,
that is a natural consequence of Respondent's program.
I am not impressed with the argument that we should
defer here to an asserted code of conduct of a psychologi-
cal association. This is not a code of confidentiality which
has received sanction in this area of the law so far as I am
advised. In any event Respondent is not bound by the
code, nor may the code insulate Respondent from the
obligations imposed by the Act as a result of Respondent's
own voluntary course of conduct. Cf. United Aircraft Corp.,
supra.
I am persuaded, however, as was the arbitrator, that
mere disclosure of the tests to lay union representatives is
not likely to be productive of constructive results. If the
tests are to be properly analyzed, this should be done by
those who have the expertise to deal with the concept
involved. The Union's lay representative in this case, who
impressed me as a very able and intelligent man for the
purpose, admittedly does not have such expertise. I am
sympathetic with the frustration which he expressed in this
case that the employees and their shop representatives
should be able to handle their own shop problems if
properly informed. Nevertheless, in some cases, as this, the
technology of the efficiency experts may outrun the ability
of the individual to cope. The individual then needs an
expert of his own. However, this does not affect the right of
the employee, through his representative, to be informed,
but may determine the manner or form which the
information is submitted. This will be considered herein-
after.
On the basis of the above, and the entire record in this
matter, I find that Respondent, by refusing to submit to the
Respondent, is completely distinguishable.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union upon request the battery of tests administered to
and the actual test papers used by the employee applicants
for the position of instrument man B involved in this case,
and the test scores of the individual applicants made on the
tests, violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. The unit set forth in footnote 3 above is appropriate
for collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material to this proceeding, the Union
was, and continues to be , the exclusive representative of
the employees in the appropriate unit for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. Respondent has violated Section 8(a)(5) and (1) of
the Act by failing and refusing to honor the Union's
demand for certain information relevant and reasonably
necessary to the processing of employee grievances.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Sections 2(6) and (7) of the Act.
Tim REMEDY
It having been found that Respondent has violated the
Act by failing and refusing to supply the Union with
certain information, it will be recommended that Respon-
dent cease and desist therefrom and supply the Union,
upon request, with the information. However, for reasons
previously stated, it is found that the purposes of the Act
will best be effectuated if Respondent be directed to supply
copies of the battery of tests administered to the employee
applicants for the position of instrument man B in this
proceeding, including the actual test papers of the
applicants (necessary to check the accuracy of the scoring
of the tests), only to a qualified psychologist selected by the
Union to act in its behalf in this matter, such submission to
be made within .10 days after Respondent receives
notification of the individual selected. 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. After the conclusion
of the arbitration proceeding, or if no request is made to
reopen the arbitration hearing within 90 days after the
zz In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
psychologist receives the battery of tests, all copies of the
battery of tests shall be returned to Respondent. Fawcett
Printing Corporation, 201 NLRB 964 (1973).
It is also recommended that Respondent be directed to
supply the Union with the scores made on the test battery
by specific employee applicants for the position. I find
without merit Respondent's contention that the scores
made by the individual employees should not be released
to the Union unless the Union secures the consent of the
individuals concerned. The situation which obtains here
was created by Respondent for its own advantage. The
Union's obligation is to represent the unit of employees as
a whole. Respondent 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.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER22
Respondent, The Detroit Edison Company, Detroit,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 223,
Utility Workers Union of America, AFL-CIO, by refusing
to furnish the Union with information relevant and
reasonably necessary to the processing of the grievances
filed on, behalf of employees represented by the Union
pursuant to Section 9(a) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Within 10 days after notification by the Union of its
selection of a qualified psychologist, submit to the
individual selected by the Union copies of the battery of
tests administered to employee applicants for the position
of instrument man B at the Monroe power plant in
November or December 1971, or January 1972, including
the actual test papers of the applicants, in accordance with
the provisions of the section entitled "The Remedy" set
forth above.
(b) Submit to the Union the actual test scores made by
each specific named employee to whom the battery of tests
was administered as set forth in paragraph 2(a) of this
order.
(c) Post at its Monroe power plant copies of the attached
notice marked "Appendix." 23 Copies of said notice, on
forms provided by the Regional Director for Region 7,
after being duly signed by the Respondent's authorized
representative, shall be posted by it for 60 consecutive days
thereafter, in consipcuous places, including all places
23 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
THE DETROIT EDISON COMPANY
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered' by
any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request , furnish Local 223, Utility
Workers Union of America, AFL-CIO, with informa-
tion concerning the battery of tests given to applicants
1037
for the position of instrument man B, and the scores
made by the applicants on the tests, which is relevant
and reasonably necessary to the processing of the
grievance filed on January 20, 1972, on behalf of
applicants who were rejected for promotion to that
position.
WE WILL NOT refuse to bargain collectively with that
Union by refusing to furnish the Union with such
information.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the National
Labor Relations Act, as amended.
THE DETROIT EDISON
COMPANY