Detroit Edison Co. v. NLRB
440 U.S. 301 (1979)

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U.S. Supreme Court

Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979)

Detroit Edison Co. v. National Labor Relations Board

No. 77-968

Argued November 6, 1978

Decided March 5, 1979

440 U.S. 301

Syllabus

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

Held:

1. The Board abused its remedial discretion in ordering petitioner to turn over the test battery and answer sheets directly to the Union. Pp. 440 U. S. 312-317.

(a) A union's bare assertion that it needs information to process a grievance does not automatically oblige the employer to supply all the

Page 440 U. S. 302

information in the manner requested. The duty to supply information under § 8(a)(5) turns upon "the circumstances of the particular case," NLRB v. Truitt Mfg. Co.,351 U. S. 149, 351 U. S. 153, and much the same may be said for the type of disclosure that will satisfy that duty. Pp. 440 U. S. 314-315.

(b) Petitioner's interest in test secrecy has been abundantly demonstrated on the record, which established petitioner's freedom under the collective bargaining contract to use aptitude tests as a criterion for promotion, the empirical validity of the tests, and the relationship between secrecy and test validity. The Board has cited no principle of national labor policy to warrant a remedy that would unnecessarily disserve this interest. P. 440 U. S. 315.

(c) The remedy selected by the Board, barring the Union from taking any action that might cause the tests to fall into the hands of employees who have taken or are likely to take them, does not adequately protect the security of the tests. There is substantial doubt whether the Union, which was not a party to the enforcement proceeding in the Court of Appeals, would be subject to a contempt citation were it to ignore the restrictions. Moreover, the Union clearly would not be accountable in either contempt or unfair labor practice proceedings for the most realistic vice inherent in the Board's remedy -- the danger of inadvertent leaks. Pp. 440 U. S. 315-316.

2. Petitioner's willingness to disclose test scores linked with the employee names only upon receipt of consents from the examinees satisfied petitioner's statutory obligations under § 8(a)(5). In light of the sensitive nature of testing information, the minimal burden that compliance with petitioner's offer would have placed on the Union, and the total absence of evidence that petitioner had fabricated concern for employee confidentiality only to frustrate the Union in the discharge of its responsibilities, the Board's conclusion that petitioner, in resisting an unconsented-to disclosure of individual test results, violated the statutory obligation to bargain in good faith cannot be sustained. Accordingly, the order requiring petitioner unconditionally to disclose the employee scores to the Union was erroneous. Pp. 440 U. S. 317-320.

560 F.2d 722, vacated and remanded.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in all but Part II-A of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 440 U. S. 320. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, and in Part I of which STEVENS, J., joined, post, p. 440 U. S. 320.

Page 440 U. S. 303

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