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
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.
(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.
, 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.
(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.
(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.
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.
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,
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,
p. 440 U. S.
Page 440 U. S. 303
MR. JUSTICE STEWART delivered the opinion of the Court.
The duty to bargain collectively, imposed upon an employer by §
8(a)(5) of the National Labor Relations Act, [Footnote 1
] includes a duty to provide relevant
information needed by a labor union for the proper performance of
its duties as the employees' bargaining representative. NLRB v.
Truitt Mfg. Co., 351 U. S. 149
NLRB v. Acme Industrial Co., 385 U.
. In this case, an employer was brought before the
National Labor Relations Board to answer a complaint that it had
violated this statutory duty when it refused to disclose certain
information about employee aptitude tests requested by a union in
order to prepare for arbitration of a grievance. The employer
supplied the union with much of the information requested, but
refused to disclose three items: the actual test questions, the
actual employee answer sheets, and the scores linked with the names
of the employees who received them. [Footnote 2
] The Board, concluding that all the items
requested were relevant to the grievance and would be useful to the
union in processing it,
Page 440 U. S. 304
ordered the employer to turn over all of the materials directly
to the union, subject to certain restrictions on the union's use of
the information. 218 N.L.R.B. 1024 (1975). A divided Court of
Appeals for the Sixth Circuit ordered enforcement of the Board's
order without modification. 560 F.2d 722 (1977).
We granted certiorari to consider an important question of
federal labor law. 435 U.S. 941. This is apparently the first case
in which the Board has held that an employer's duty to provide
relevant information to the employees' bargaining representative
includes the duty to disclose tests and test scores achieved by
named employees in a statistically validated psychological aptitude
testing program administered by the employer. Psychological
aptitude testing is a widely used employee selection and promotion
device in both private industry and government. Test secrecy is
concededly critical to the validity of any such program, and
confidentiality of scores is undeniably important to the examinees.
The underlying question is whether the Board's order, enforced
without modification by the Court of Appeals, adequately
accommodated these concerns.
The petitioner, Detroit Edison Co. (hereinafter Company), is a
public utility engaged in the generation and distribution of
electric power in Michigan. Since about 1943, the Utility Workers
Union of America, Local 223, AFL-CIO (Union) has represented
certain of the Company's employees. At the time of the hearing in
this case, one of the units represented by the Union was a unit of
operating and maintenance employees at the Company's plant in
Monroe, Mich. The Union was certified as the exclusive bargaining
agent for employees in that unit in 1971, and it was agreed that
these employees would be covered by a preexisting collective
bargaining agreement, one of the provisions of which specified that
promotions within a given unit were to be based on seniority
"whenever reasonable qualifications and abilities of the employees
Page 440 U. S. 305
are not significantly different." Management decisions to bypass
employees with greater seniority were subject to the collective
agreement's grievance machinery, including ultimate arbitration,
whenever a claim was made that the bypass had been arbitrary or
The aptitude tests at issue were used by the Company to screen
applicants for the job classification of "Instrument Man B." An
Instrument Man is responsible for installing, maintaining,
repairing, calibrating, testing, and adjusting the powerplant
instrumentation. The position of Instrument Man B, although at the
lowest starting grade under the contract and usually requiring
on-the-job training, was regarded by the Company as a critical job
because it involved activities vital to the operation of the
The Company has used aptitude tests as a means of predicting job
performance since the late 1920's or early 1930's. [Footnote 3
] In the late 1950's, the Company
first began to use a set of standardized tests (test battery) as a
predictor of performance on the Instrument Man B job. The battery,
which had been "validated" for this job classification, [Footnote 4
] consisted of the
Page 440 U. S. 306
Wonderlic Personnel Test, the Minnesota Paper Form Board (MPFB),
and portions of the Engineering and Physical Science Aptitude Test
(EPSAT). All employees who applied for acceptance into the
Instrument Man classification were required to take this battery.
Three adjective scores were possible: "not recommended,"
"acceptable," and "recommended." [Footnote 5
In the late 1960's, the technical engineers responsible for the
Company's instrumentation department complained that the test
battery was not an accurate screening device. The Company's
industrial psychologists, accordingly, performed a revalidation
study of the tests. As a result, the Personnel Test was dropped,
and the scoring system was changed. Instead of the former
three-tier system, two scores were possible under the revised
battery: "not recommended" and "acceptable." The gross test score
required for an "acceptable" rating was raised to 10.3, a figure
somewhat lower than the former score required for a "recommended"
but higher than the "acceptable" score used previously.
The Company administered the tests to applicants with the
express commitment that each applicant's test score would remain
confidential. Tests and test scores were kept in the offices of the
Company's industrial psychologists, who, as members of the American
Psychological Association, deemed themselves ethically bound not to
disclose test information to
Page 440 U. S. 307
unauthorized persons. [Footnote
] Under this policy, the Company's psychologists did not
reveal the tests or report actual test numerical scores to
management or to employee representatives. The psychologists would,
however, if an individual examinee so requested, review the test
questions and answers with that individual.
The present dispute had its beginnings in 1971, when the Company
invited bids from employees to fill six Instrument Man B openings
at the Monroe plant. Ten Monroe unit employees applied. None
received a score designated as "acceptable," and all were, on that
basis rejected. The jobs were eventually filled by applicants from
outside the Monroe plant bargaining unit.
The Union filed a grievance on behalf of the Monroe applicants,
claiming that the new testing procedure was unfair, and that the
Company had bypassed senior employees in violation of the
collective bargaining agreement. The grievance was rejected by the
Company at all levels, and the Union took it to arbitration. In
preparation for the arbitration, the Union requested the Company to
turn over various materials related to the Instrument Man B testing
program. The Company furnished the Union with copies of test
validation studies performed by its industrial psychologists and
with a report by an outside consultant on the Company's entire
testing program. It refused, however, to release the actual test
battery, the applicants' test papers, and their scores,
Page 440 U. S. 308
maintaining that complete confidentiality of these materials was
necessary in order to insure the future integrity of the tests and
to protect the privacy interests of the examinees.
The Union then filed with the Board the unfair labor practice
charge involved in this case. The charge alleged that the
information withheld by the Company was relevant and necessary to
the arbitration of the grievance,
"including the ascertainment of promotion criteria, the veracity
of the scoring and grading of the examination and the testing
procedures, and the job relatedness of the test(s) to the
Instrument Man B classification."
After filing the unfair labor practice charge, the Union asked
the arbitrator to order the Company to furnish the materials at
issue. He declined on the ground that he was without authority to
do so. In view of the pendency of the charges before the Board, the
parties proceeded with the arbitration on the express understanding
that the Union could reopen the case should it ultimately prevail
in its claims. During the course of the arbitration, however, the
Company did disclose the raw scores of those who had taken the
test, with the names of the examinees deleted. In addition, it
provided the Union with sample questions indicative of the types of
questions appearing on the test battery and with detailed
information about its scoring procedures. It also offered to turn
over the scores of any employee who would sign a waiver releasing
the Company psychologist from his pledge of confidentiality. The
Union declined to seek such releases.
The arbitrator's decision found that the Company was free under
the collective agreement to establish minimum reasonable
qualifications for the job of Instrument Man and to use aptitude
tests as a measure of those qualifications; that the Instrument Man
B test battery was a reliable and fair test in the sense that its
administration and scoring had been standardized; and that the test
had a "high degree of validity" as
Page 440 U. S. 309
a predictor of performance in the job classification for which
it was developed. He concluded that the 10.3 score created a
"presumption of significant difference under the contract."
] He also expressed
the view that the Union's position in the arbitration had not been
impaired because of lack of access to the actual test battery.
Several months later, the Board issued a complaint based on the
Union's unfair labor practice charge. At the outset of the hearing
before the Administrative Law Judge, the Company offered to turn
over the test battery and answer sheets to an industrial
psychologist selected by the Union for an independent evaluation,
stating that disclosure to an intermediary obligated to preserve
test secrecy would satisfy its concern that direct disclosure to
the Union would inevitably result in dissemination of the
questions. The Union rejected this compromise.
The Administrative Law Judge found that, notwithstanding the
conceded statistical validity of the test battery, the tests and
scores would be of probable relevant help to the Union in the
performance of its duties as collective bargaining agent. He
reasoned that the Union, having had no access to the tests, had
"deprived of any occasion to check the tests for built-in bias,
or discriminatory tendency, 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."
The Company's claim that employees' privacy might be abused by
disclosure to the Union of the scores he rejected as insubstantial.
Accordingly, he recommended that
Page 440 U. S. 310
the Company be ordered to turn over the test scores directly to
the Union. He did, however, accept the Company's suggestion that
the test battery and answer sheets be disclosed to an expert
intermediary. Disclosure of these materials to lay Union
representatives, he reasoned, would not be likely to produce
constructive results, since the tests could be properly analyzed
only by professionals. [Footnote
] The Union was to be given "the right to see and study the
tests," and to use the information therein "to the extent necessary
to process and arbitrate the grievances," but not to disclose the
information to third parties other than the arbitrator.
The Company specifically requested the Board "to adopt that part
of the order which requires that tests be turned over to a
qualified psychologist," but excepted to the requirement that the
employee-linked scores be given to the Union. It contended that the
only reason asserted by the Union in support of its request for the
scores -- to check their arithmetical accuracy -- was not
sufficient to overcome the principle of confidentiality that
underlay its psychological testing program. The Union filed a
cross-exception to the requirement that it select a psychologist,
arguing that it should not be forced to "employ an outsider for
what is normal grievance and Labor-Management work."
The Board, and the Court of Appeals for the Sixth Circuit in its
decision enforcing the Board's order, ordered the Company to turn
over all the material directly to the Union. They concluded that
the Union should be able to determine for itself whether it needed
a psychologist to interpret the test battery and answer sheets.
Both recognized the Company's interest in maintaining the security
of the tests, but both
Page 440 U. S. 311
reasoned that appropriate restrictions on the Union's use of the
materials would protect this interest. [Footnote 9
] Neither was receptive to the Company's claim
that employee privacy and the professional obligations of the
Company's industrial psychologists should outweigh the Union
request for the employee-linked scores.
Because of the procedural posture of this case, the questions
that have been preserved for our review are relatively narrow. The
Company has presented a lengthy argument designed to demonstrate
that the Board and the Court of Appeals misunderstood the premises
of its aptitude testing program, and thus erred in concluding that
the information requested by the Union would be of any actual or
potential relevance to the performance of its duties. This basic
challenge, insofar as it concerns the test battery and answer
sheets, is foreclosed, however, by § 10(e) of the Act because of
the Company's failure to raise it before the Board. [Footnote 10
Page 440 U. S. 312
Two issues, then, are presented on this record. The first
concerns the Board's choice of a remedy for the Company's failure
to disclose copies of the test battery and answer sheets. The
second, and related, question concerns the propriety of the Board's
conclusion that the Company committed an unfair labor practice when
it refused to disclose, without a written consent from the
individual employees, the test scores linked with the employee
We turn first to the question whether the Board abused its
remedial discretion when it ordered the Company to deliver
Page 440 U. S. 313
directly to the Union the copies of the test battery and answer
sheets. The Company's position, stripped of the argument that it
had no duty at all to disclose these materials, is as follows: it
urges that disclosure directly to the Union would carry with it a
substantial risk that the test questions would be disseminated.
Since it spent considerable time and money validating the
Instrument Man B tests and since its tests depend for reliability
upon the examinee's lack of advance preparation, it contends that
the harm of dissemination would not be trivial. The future validity
of the tests is tied to secrecy, and disclosure to employees would
not only threaten the Company's investment but would also leave the
Company with no valid means of measuring employee aptitude. The
Company also maintains that its interest in preserving the security
of its tests is consistent with the federal policy favoring the use
of validated, standardized, and nondiscriminatory employee
selection procedures reflected in the Civil Rights Act of 1964.
Page 440 U. S. 314
In his brief on behalf of the Board, the Solicitor General has
acknowledged the existence of a strong public policy against
disclosure of employment aptitude tests and, at least in the
context of civil service testing, has conceded that "[g]overnmental
recruitment would be seriously disputed and public confidence
eroded if the integrity of . . . tests were compromised." Indeed,
he has also acknowledged that the United States Civil Service
"has been zealous to guard against undue disclosure and has
successfully contended for protective orders which limit exposure
of the tests to attorneys and professional psychologists with
restrictions on copying or disseminating test materials."
He urges, however, that the Board's order can be justified on
the grounds that the Union's institutional interests militate
against improper disclosure, and that the specific protective
provisions in the Board's order will safeguard the integrity of the
tests. [Footnote 12
emphasizes the deference generally accorded to "the considered
judgment of the Board, charged by Congress with special
responsibility for effectuating labor policy." We do not find these
A union's bare assertion that it needs information to process a
grievance does not automatically oblige the employer to supply all
the information in the manner requested. The duty to supply
information under § 8(a)(5) turns upon "the circumstances of the
particular case," NLRB v. Truitt Mfg. Co.,
351 U.S. at
351 U. S. 153
and much the same may be said for
Page 440 U. S. 315
the type of disclosure that will satisfy that duty. See,
e.g., American Cyanamid Co.,
129 N.L.R.B. 683, 684 (1960).
Throughout this proceeding, the reasonableness of the Company's
concern for test secrecy has been essentially conceded. The finding
by the Board that this concern did not outweigh the Union's
interest in exploring the fairness of the Company's criteria for
promotion did not carry with it any suggestion that the concern
itself was not legitimate and substantial. [Footnote 13
] Indeed, on this record -- which has
established the Company's freedom under the collective 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 strength of the Company's concern has been
abundantly demonstrated. The Board has cited no principle of
national labor policy to warrant a remedy that would unnecessarily
disserve this interest, and we are unable to identify one.
It is obvious that the remedy selected by the Board does not
adequately protect the security of the tests. The restrictions
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 are only as effective as the sanctions available to
enforce them. In this instance, there is substantial doubt whether
the Union would be subject to a contempt citation were it to ignore
the restrictions. It was not a party to the enforcement proceeding
in the Court of Appeals, and the scope of an enforcement order
under § 10(e) is limited by Fed.Rule Civ.Proc. (d) making an
injunction binding only "upon the parties to the action . . .
Page 440 U. S. 316
upon those persons in active concert or participation with them.
. . ." See Regal Knitwear Co. v. NLRB, 324 U. S.
, 324 U. S. 14
Union, of course, did participate actively in the Board
proceedings, but it is debatable whether that would be enough to
satisfy the requirement of the Rule. Further, the Board's
regulations contemplate a contempt sanction only against a
respondent, 29 CFR §§ 101.9, 101.14-101.15 (1978), and the
initiation of contempt proceedings is entirely within the
discretion of the Board's General Counsel. Utility Workers v.
Consolidated Edison Co., 309 U. S. 261
309 U. S. 269
Effective sanctions at the Board level are similarly problematic.
To be sure, the Board's General Counsel could theoretically bring a
separate unfair labor practice charge against the Union, but he
could also, in his unreviewable discretion, refuse to issue such a
29 U.S.C. § 153(d); Vaca v. Sipes,
386 U. S. 171
386 U. S. 182
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
We are mindful that the Board is granted broad discretion in
devising remedies to undo the effects of violations of the Act,
NLRB v. Seven-Up Bottling Co., 344 U.
, 344 U. S. 346
Fibreboard Corp. v. NLRB, 379 U.
, 379 U. S. 216
and of the principle that in the area of federal labor law "the
relation of remedy to policy is peculiarly a matter for
administrative competence." Phelps Dodge Corp. v. NLRB,
313 U. S. 177
313 U. S. 194
Nonetheless, the rule of deference to the Board's choice of remedy
does not constitute a blank check for arbitrary action. The role
that Congress in § 10(e) has entrusted to the courts in reviewing
the Board's petitions for enforcement of its orders is not that of
passive conduit. See Fibreboard Corp. v. NLRB, supra
379 U. S. 216
The Board in this case having identified no justification for a
remedy granting such scant protection to the Company's undisputed
and important interests in test secrecy, we hold that the Board
abused its discretion
Page 440 U. S. 317
in ordering the Company to turn over the test battery and answer
sheets directly to the Union.
The dispute over Union access to the actual scores received by
named employees is in a somewhat different procedural posture,
since the Company did, on this issue, preserve its objections to
the basic finding that it had violated its duty under § 8(a)(5)
when it refused disclosure. The Company argues that, even if the
scores were relevant to the Union's grievance (which it vigorously
disputes), the Union's need for the information was not
sufficiently weighty to require breach of the promise of
confidentiality to the examinees, breach of its industrial
psychologists' code of professional ethics, and potential
embarrassment and harassment of at least some of the examinees. The
Board responds that this information does satisfy the appropriate
standard of "relevance," see NLRB v. Acme Industrial Co.,
385 U. S. 432
that the Company, having "unilaterally" chosen to make a promise of
confidentiality to the examinees, cannot rely on that promise to
defend against a request for relevant information. The professional
obligations of the Company's psychologists, it argues, must give
way to paramount federal law. Finally, it dismisses as speculative
the contention that employees with low scores might be embarrassed
We may accept for the sake of this discussion the finding that
the employee scores were of potential relevance to the Union's
grievance, as well as the position of the Board that the federal
statutory duty to disclose relevant information cannot be defeated
by the ethical standards of a private group. Cf. Nash v.
Florida Industrial Comm'n, 389 U. S. 235
389 U. S. 239
Nevertheless we agree with the Company that its willingness to
disclose these scores only upon receipt of consents from the
examinees satisfied its statutory obligations under § 8(a)(5).
Page 440 U. S. 318
The Board's position appears to rest on the proposition that
union interest in arguably relevant information must always
predominate over all other interests, however legitimate. But such
an absolute rule has never been established, [Footnote 14
] and we decline to adopt such a rule
here. [Footnote 15
are situations in which an employer's conditional offer to disclose
may be warranted. This, we believe, is one.
The sensitivity of any human being to disclosure of information
that may be taken to bear on his or her basic competence is
sufficiently well known to be an appropriate subject of judicial
notice. [Footnote 16
is nothing in this record to
Page 440 U. S. 319
suggest that the Company promised the examinees that their
scores would remain confidential in order to further parochial
concerns or to frustrate subsequent Union attempts to process
employee grievances. And it has not been suggested at any point in
this proceeding that the Company's unilateral promise of
confidentiality was, in itself, violative of the terms of the
collective bargaining agreement. Indeed, the Company presented
evidence that disclosure of individual scores had in the past
resulted in the harassment of some lower scoring examinees who had,
as a result, left the Company.
Under these circumstances, any possible impairment of the
function of the Union in processing the grievances of employees is
more than justified by the interests served in conditioning the
disclosure of the test scores upon the consent of the very
employees whose grievance is being processed. The burden on the
Union in this instance is minimal. The Company's interest in
preserving employee confidence in the testing program is well
In light of the sensitive nature of testing information, the
minimal burden that compliance with the Company's offer would have
placed on the Union, and the total absence of
Page 440 U. S. 320
evidence hat the Company had fabricated concern for employee
confidentiality only to frustrate the Union in the discharge of its
responsibilities, we are unable to sustain the Board in its
conclusion that the Company, in resisting an unconsented-to
disclosure of individual test results, violated the statutory
obligation to bargain in good faith. See NLRB v. Truitt Mfg.
Co., 351 U. S. 149
Accordingly, we hold that the order requiring the Company
unconditionally to disclose the employee scores to the Union was
The judgment is vacated, and the case remanded to the Court of
Appeals for the Sixth Circuit for further proceedings consistent
with this opinion.
It is so ordered.
29 U.S.C. §§ 151-158.
The arbitration was subsequently held without the benefit of
this information, subject to the stipulation that the union could
reopen the award if a court ordered disclosure of these materials.
at 440 U. S.
Aptitude tests are not designed to measure current knowledge and
skills relevant to a job, but, instead, to measure the examinee's
ability to acquire such knowledge and skills.
The Company used the empirical method of establishing validity;
that is, it analyzed the requirements of the Instrument Man B job
and developed objective measures by which supervisors were to rate
the performance of employees in this job classification. Incumbents
were given the preselected tests, and their scores were then
compared with the supervisory ratings. A statistically significant
correlation between the scores and the ratings was
Both the Company and the Union were named defendants in a
lawsuit in which various Company employment practices, including
aptitude tests used for other job classifications, were found to
violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. See Stamps v. Detroit Edison
Co., 365 F. Supp.
, 118-119 (ED Mich.1973), rev'd as to remedy, EEOC v.
Detroit Edison Co.,
515 F.2d 301 (CA6 1975), vacated and
remanded, Detroit Edison v. EEOC,
431 U.S. 951 (1977),
superseding order entered, EEOC v. Detroit Edison Co.,
E.P.D. 8583 (ED Mich.1978), notice of appeal filed,
24, 1978. The issues in the present unfair labor practice
litigation are distinct, and nothing in this opinion, particularly
use of such words as "valid" or "validate," is to be understood as
bearing in any way on possible Title VII questions. Cf.
Albemarle Paper Co. v. Moody, 422 U.
, 422 U. S.
During the decade or so that this test battery was in use, only
one grievance involving it was filed. In that instance, a senior
employee who had received an "acceptable" score was bypassed for
acceptance in favor of a junior employee who had received a higher
"recommended" score. The grievance was upheld.
American Psychological Assn, Standards for
Educational and Psychological Tests (1974). Standard J-2 prohibits
disclosure of aptitude tests and test scores to unauthorized
individuals. See also
Ethical Standards of Psychologists
(1977 rev.). Principle 5 of the Ethical Standards imposes an
obligation on the psychologist to safeguard "information about an
individual that has been obtained . . . in the course of . .
teaching, practice, or investigation." Subsection (b) of the
Principle permits the psychologist to discuss evaluative data
concerning employees, but only if the "data, [is] germane to the
purposes of the evaluation" and "every effort" has been made to
"avoid undue invasion of privacy."
The arbitrator did conclude, however, that the 10.3 cutoff score
was too high, because it eliminated some applicants who would
probably succeed in the Instrument Man job. Based on the Company's
validation statistics, he concluded that seniority would be
undermined unless those applicants who had received scores of
between 9.3 and 10.3 were given an opportunity to demonstrate that
they had other qualifications that might offset their somewhat
lower scores. Three applicants were in this group. As a result of
the evaluation ordered by the arbitrator, one was promoted.
The Company had consistently maintained that disclosure to the
Union would serve no purpose. It contended that the validity of the
tests depended upon a statistical determination that they were
accurate predictors of future job performance. Lay examination of
the questions, it asserted, could only determine whether the
questions were, on their face, related to the job.
The Board, although it ordered the Company to supply the tests
and answer sheets directly to the Union, incorporated by reference
the Administrative Law Judge's restrictions on the Union's use of
the materials. Under those restrictions, the Union was given the
"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, the Union was required
to return "all copies of the battery of tests" to the Company. The
Court of Appeals, in enforcing the Board's order, stated that the
"restrictions on use of the materials and obligation to return them
to Detroit Edison are part of the decision and order which we
enforce." 560 F.2d 722, 726.
29 U.S.C. § 160(e). Section 10(e) precludes a reviewing court
from considering an objection that has not been urged before the
Board, "unless the failure or neglect to urge such objection shall
be excused because of extraordinary circumstances." The Board
enforces a similar procedural limitation through a rule providing
that any exception to a finding of the Administrative Law Judge not
specifically urged before the Board "shall be deemed to have been
waived." 29 CFR § 102.40(b) (1978). The rule serves a sound
purpose, and unless a party's neglect to press an exception before
the Board is excused by the statutory "extraordinary circumstances"
exception or unless the Board determination at issue is patently in
excess of its authority, we are bound by it. See, e.g., NLRB v.
Ochoa Fertilizer Corp., 368 U. S. 318
368 U. S.
The Company has justified its failure to object on the ground
that it had "no practical reason" to challenge the portion of the
Administrative Law Judge's recommendation adopting its suggestion
that the tests and answer sheets be disclosed to an intermediary.
If this ground were accepted as an "extraordinary circumstance,"
however, little would be left of the statutory exception. In any
case, the Company's "practical" reason disappeared when it again
failed to challenge the finding of relevance after the Union had
filed a cross-exception urging that direct disclosure be
Moreover, much of the Company's challenge to relevancy is based
upon the arbitrator's findings and conclusion that examination of
these materials would prove little. We do not question the
arbitrator's interpretation of the collective agreement.
Nonetheless, the parties agreed not to be bound by the arbitrator's
determination of relevance, the arbitrator accepted this condition,
and the Board concluded that the Union could properly invoke its
jurisdiction on these terms. This is not to say that the arbitral
award itself is irrelevant to this controversy. The arbitration
record and award were before the Administrative Law Judge, and we
do not understand the Board to have disturbed the arbitrator's
resolution of the contract issues peculiarly within his competence.
Cf. NLRB v. Acme Industrial Co., 385 U.
, 385 U. S.
42 U.S.C. § 2000e et seq.
The Company places particular
emphasis on § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), and the
agency guidelines promulgated thereunder. Indeed, it has argued
that the guidelines are violated by the Board's order directing
disclosure to the employee representative. With this we cannot
agree. Section 703(h) permits an employer to
"give and to act upon the results of any professionally
developed ability test provided that such test, its administration,
or action upon the results is not designed, intended, or used to
discriminate because of race, color, religion, sex or national
Pursuant to § 703(h), specific guidelines on employee testing
programs have been issued. See
Opportunity Comm'n, Guidelines on Employee Selection Procedures, 29
CFR § 1607.1 et seq.
(1977). The guidelines state that
"properly validated and standardized employee selection
procedures can significantly contribute to the implementation of
nondiscriminatory personnel policies."
§ 1607.1(a). In another section of the guidelines, it is stated
that evidence of test validity must be based on
"studies employing generally accepted procedures for determining
criterion-related validity, such as those described in the
'standards for Educational and Psychological Tests and Manuals'
published by the American Psychological Association."
§ 1607.5. The guidelines further provide that
"[t]ests must be administered and scored under controlled and
standardized conditions, with proper safeguards to protect the
security of tests scores."
§ 1607.5(b)(2). Contrary to the Company's assertion, these
provisions, although they do recognize the relationship between
test security and test validity, do not insulate testing materials
from the employer's duty under the Act to disclose relevant
information. At most, they provide evidence of the employer's
interest in maintaining the security of properly validated
The Board limited discussion of its reasons for eliminating the
intermediary requirement to the statement that "it is reasonable to
assume that, having requested the papers, the Union intends
effectively to utilize them." Consequently, it said, it
"would not condition the Union's access to the information on
the retention of a psychologist, but rather would have [the
Company] submit the information directly to the Union and let the
Union decide whether the assistance or expertise of a psychologist
See Emeryville Research Center, Shell Development Co. v.
441 F.2d 880 (CA9 1971) (refusal to supply relevant
salary information in precise form demanded did not constitute
violation of § 8(a)(5) when company's proposed alternatives were
responsive to union's need); Shell Oil Co. v. NLRB,
F.2d 615 (CA9 1975) (refusal to supply employee names without
employee consent not unlawful when company had well-founded fear
that nonstriking employees would be harassed); cf. Kroger Co.
399 F.2d 455 (CA6 1968) (no disclosure of operating
ratio data when, under circumstances, interests of employer
predominated); United Aircraft Corp.,
192 N.L.R.B. 382,
390 (1971) (employer acted reasonably in refusing to honor
generalized request for employee medical records without employee's
permission), modified on other grounds, Machinists v. United
534 F.2d 422 (CA2 1975).
NLRB v. Wyman-Gordon Co., 394 U.
, relied upon by the Solicitor General, is not to
the contrary. The interests at stake and the legal issues involved
in that case, in which the Board ordered the company to disclose
the names and addresses of employees to a union in the process of
an organizing campaign, were far different from those involved
A person's interest in preserving the confidentiality of
sensitive information contained in his personnel files has been
given forceful recognition in both federal and state legislation
governing the recordkeeping activities of public employers and
agencies. See, e.g.,
Privacy Act of 1974, 5 U.S.C. § 552a
(written consent required before information in individual records
may be disclosed unless the request falls within an explicit
statutory exception); Colo.Rev.Stat. § 24-72-204(3)(a) (1973)
(regulating disclosure of medical, psychological, and scholastic
achievement data in public records); Iowa Code Ann. §§
68A.7(10)-(11) (West 1973) (regulating disclosure of personal
information in public employee records); N.Y.Pub.Off.Law §§
89(2)(b)(i)-(c)(ii) (McKinney Supp. 1978) (disapproving
unconsented-to release of employment and medical information in
public records). See also
U.S. Privacy Protection Study
Comm'n, Personal Privacy in an Information Society (1977)
(recommending that all employers should be under a duty to
safeguard the confidentiality of employee records). G. Family
Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g
(explicitly recognizing, in the context of education, the interest
of the individual in maintaining the confidentiality of test
scores). Indeed, the federal Privacy Act ban on unconsented-to
disclosure of employee records without written consent has been
construed to provide a valid defense to a union request for certain
employee personnel data made pursuant to the terms of a public
employee collective bargaining agreement. See American
Federation of Govt. Employees v. Defense General Supply
Center, 423 F.
(ED Va.1976), aff'd per curiam,
573 F.2d 184
MR. JUSTICE STEVENS, concurring in part and dissenting in
This is a close case on both issues. With respect to the test
battery and answer sheets, I agree with MR. JUSTICE WHITE that we
should respect the Board's exercise of its broad remedial
discretion. On the other hand, I agree with the Court that the
Union should not be permitted to invade the individual employees'
interest in the confidentiality of their test scores without their
consent. Accordingly, I join all but Part II-A of the Court's
opinion and also join Part I of MR. JUSTICE WHITE s dissent.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE
MARSHALL join, and with whom MR. JUSTICE STEVENS joins as to Part
The Court today disapproves enforcement of an order of the
National Labor Relations Board essentially on the theory that the
order fails to accommodate properly the competing interests of the
Union, individual employees, and the employer. We have formerly
stressed, however, that
"'balancing . . . conflicting legitimate interests . . . to
Page 440 U. S. 321
labor policy is often a difficult and delicate responsibility,
which the Congress committed primarily to the National Labor
Relations Board, subject to limited judicial review.'"
Beth Israel Hospital v. NLRB, 437 U.
, 437 U. S. 501
(1978), quoting NLRB v. Truck Drivers, 353 U. S.
, 353 U. S. 96
(1957). Because I perceive no warrant to disturb the balance the
Board has struck in this case, I dissent.
As the Court holds, the relevance of the test questions and
answer sheets to the performance of the Union's statutory duties is
established for present purposes by the Company's failure to press
the issue properly before the Board. The Court, moreover, does not
explicitly upset the Board's determination that the Company's
failure to release those materials to the Union amounted to an
unfair labor practice. The only issue here regarding the test
questions and answer sheets is
"whether the Board abused its remedial
it ordered the Company to deliver directly to the Union the copies
of the test battery and answer sheets."
at 440 U. S.
-313 (emphasis added). If, however, the basic
impropriety of the Company's failure to divulge the materials to
the Union is settled, the Board's remedial
compel conditional disclosure is abundantly clear. The Court is
quite wrong in holding that the Board's order exceeded the agency's
"broad discretionary [remedial power]." Fibreboard Corp. v.
NLRB, 379 U. S. 203
379 U. S. 216
(1964). For it is too well established that a decree fashioned by
the Board to remedy violations of the Act
"will not be disturbed 'unless it can be shown that the order is
a patent attempt to achieve ends other than those which can fairly
be said to effectuate the policies of the Act.'"
quoting Virginia Elec. & Power Co. v.
NLRB, 319 U. S. 533
319 U. S. 540
The Court nevertheless asserts that the Board erred in directing
the Company to release the test questions and
Page 440 U. S. 322
answer sheets directly to the Union with no more formal
assurance that secrecy will be preserved than that afforded by the
Board's protective order. Release to the Union, it is said, risks
imminent general disclosure without any apparent justification.
Presumably, the test questions and answer sheets ought to be
divulged to a psychologist instead. In so concluding, the majority
-- in my view -- unduly discounts the Board's own appraisal of the
jeopardy to the Company's interests and of the substantiality of
The Board ordered release of the test questions and answer
sheets only on condition that the Union preserve their secrecy.
Specifically, the Union was admonished not to copy the materials or
to make them available to potential test takers or to others who
might advise the employees of their content. The Court scoffs at
the order, however, on the ground that "there is substantial doubt
whether the Union would be subject to a contempt citation were it
to ignore the restrictions." Ante
at 440 U. S. 315
] But the Board placed
no reliance on contempt sanctions
Page 440 U. S. 323
when it directed release, and there is scant reason for
rejecting the Board's judgment that sanctions of that sort are
unnecessary. The Board, in my view, had forceful and independent
grounds for concluding that the Union would respect the
confidentiality of the materials and take due precautions against
The Union has enjoyed a long and extensive relationship with the
employer [Footnote 2/2
] that it
would be loath to jeopardize by intentionally breaching the
conditions of release. Cf. Fawcett Printing Corp.,
N.L.R.B. 964, 974 (1973). Even if the Union had any incentive to
publicize the examination questions, its ardor would be dampened by
the likely long-term consequences of that course; the Board
exercises continuing authority over the Union's affairs, and it may
well approve the Company's future insistence on rigorous secrecy,
thus delimiting the Union's subsequent latitude in grievance
processing. [Footnote 2/3
Moreover, dissemination of test materials to potential test takers
might impair the interests of those employees who qualify fairly
for a desired position, thus inviting their disapprobation.
Page 440 U. S. 324
The Company acknowledges, in any event, see
Tr. of Oral
Arg. 12, and the Court agrees, see ante
at 440 U. S. 316
that the real concern is with inadvertent disclosure. Yet there is
no basis for assuming that the Union would handle the materials so
cavalierly as to chance accidental disclosure, given the gravity
with which the issue has been treated by all concerned. Thus, in
the circumstances of this case, the Board had ample grounds to
expect Union cooperation. And this Court is ill-equipped to fault
the Board on a matter so plainly summoning the Board's keen
familiarity with industrial behavior.
Besides overrating the hazards of direct release to the Union of
the test questions, the Court undervalues the interests vindicated
by that procedure. The Court asserts simply that the
"Board has cited no principle of national labor policy to
warrant a remedy that would unnecessarily disserve [the Company's
interest in maintaining secrecy], and we are unable to identify
at 440 U. S. 315
The Board observed in its decision, however, that,
"[a]s the bargaining agent of the employees involved, it is the
Union which is entitled to information which is necessary to its
role as bargaining agent in the administration of the collective
218 N.L.R.B. 1024 (1975). The employer's "accommodation" --
releasing the test questions solely to a psychologist -- which the
Court tacitly endorses, is fundamentally at odds with the basic
structure of the bargaining process. Congress has conferred
paramount representational responsibilities and obligations on the
employees' freely chosen bargaining agent. Yet the Company's
alternative would install a third-party psychologist as a partner,
if not primary actor, in promotion-related grievance
Page 440 U. S. 325
The services of a professional psychologist, furthermore, may be
totally unnecessary. Suspected difficulties with the test questions
may necessitate consultation with a psychologist, but resort to
such assistance is not so foreordained as to justify compulsory
retention of a psychologist as a condition to availability of
materials pertinent to the processing of a grievance. In fact, the
attendant expense may well encourage the Union to forgo requesting
the information, despite its potential utility. Confronted with
these concerns, the Board reasonably undertook to ensure that
primary responsibility for grievance evaluation and processing
remains where Congress put it, and that the Union's access to
pertinent information remains unimpeded by cumbersome or
The Court further concludes that the Company properly declined
to disclose the examinees' test scores, associated with the
employees' names, absent consent by the examinees themselves.
] In the majority's
view, the Board accorded too little
Page 440 U. S. 326
weight to the interests of individual employees in the
confidentiality of their test results and too much significance to
the "minimal" burden on the Union that would result from a consent
requirement. In this respect, too, the Court inappropriately
substitutes its judgment for the reasonable determination of the
Preliminarily, it is notable that the confidentiality of the
test results was significantly compromised by circumstances
Page 440 U. S. 327
independent of the Board's disclosure order at issue herein. The
Union, and the employees generally, were aware that the 10
aggrieved job applicants received scores below 10.3 -- the cutoff
point. Moreover, in consequence of the arbitrator's ruling, it
became generally evident that 3 of the 10 applicants had earned
scores falling between 9.3 and 10.3, and that the remaining 7 had
scored below 9.3. See
218 N.LR.B. at 1032. Thus, the real
question here is whether the Board was unreasonable in concluding
that the marginal intrusion on confidentiality accompanying full
disclosure to the Union was so profound as to require the
withholding of that information from the statutory bargaining
Significantly, the employer has presented no evidence that the
employees involved actually oppose disclosure. Nor has the Company
demonstrated any palpable basis for believing that release will
result in harassment or ridicule of the examinees. Cf. United
Aircraft Corp. v. NLRB,
434 F.2d 1198, 1207 (CA2 1970),
401 U.S. 993 (1971). The Court notes
"the Company presented evidence that disclosure of individual
scores had in the past resulted in the harassment of some lower
scoring examinees who had, as a result, left the Company."
at 440 U. S. 319
But that evidence consisted of an isolated representation by a
Company psychologist concerning events occurring "many, many years
ago." App. 84. And the Administrative Law Judge evidently dismissed
the account in concluding that the Company had "produced no
probative evidence that the employees' sensitivities are likely to
be abused by disclosure of the scores." 218 N.L.R.B. at 1035.
] When an employer
Page 440 U. S. 328
divulgence of materials relevant to employee grievances, I would
think that the employer has the burden of establishing any
justification for nondisclosure. The Court, however, presumes what
yet remains to be shown.
Moreover, there is no basis in the governing statute or
regulations for attributing ascendant importance to the employees'
confidentiality interests. Whether confidentiality considerations
should prevail in the circumstances of this case is, as the Company
and majority agree, principally a matter of policy. But it cannot
be gainsaid that the Board is the body charged in the first
instance with the task of discerning and effectuating congressional
policies in the labor-management area. Its judgments in that regard
should not be lightly overturned. Yet the Court strikes its own
balance according decisional weight to concerns having no asserted
or apparent foundation in the statute it purports to construe or in
other applicable legislation.
The Court lightly dismisses the Union's interest in receipt of
the examinees' identified scores, with or without consent, by
declaring the burdens involved as "minimal." Ante
440 U. S. 319
The Administrative Law Judge noted, however, that the
"Union's obligation is to represent the unit of employees as a
whole[; the Company] 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
218 N.L.R.B. at 1036. [Footnote
Page 440 U. S. 329
Were individual examinees to withhold consent, and thus prevent
the Union from scrutinizing their scores in light of their
demographic and occupational characteristics, the Union might be
inhibited in its efforts to discern patterns or anomalies
indicating bias in the operation of the tests. [Footnote 2/8
] Thus, the Board directed divulgence
of the scores to the employees' statutory bargaining representative
to enable it effectively to fulfill its vital statutory functions.
Such a limited intrusion, cf. Whalen v. Roe, 429 U.
, 429 U. S. 602
(1977), for the purpose of vindicating grave statutory policies,
hardly signals an occasion for Judicial intervention. [Footnote 2/9
Page 440 U. S. 330
In sum, I think the Board's resolution is sound, and that the
Sixth Circuit's judgment enforcing it should be sustained. I do not
mean to suggest that the considerations advanced by the Company are
without substance, or that this case does not present a "difficult
and delicate" task of balancing competing claims. Cf. Beth
Israel Hospital v. NLRB,
437 U.S. at 437 U. S. 501
But, by virtue of that, this is precisely the kind of case in which
"considerable deference" is owed the Board. NLRB v. Iron
Workers, 434 U. S. 335
434 U. S. 350
(1978); see NLRB v. Insurance Agents, 361 U.
, 361 U. S. 499
(1960); NLRB v. Truck Drivers,
353 U.S. at 353 U. S. 96
"[h]ere, as in other cases, we must recognize the Board's
special function of applying the general provisions of the Act to
the complexities of industrial life, . . . and of '[appraising]
carefully the interests of both sides of any labor-management
controversy in the diverse circumstances of particular cases'
Page 440 U. S. 331
its special understanding of 'the actualities of industrial
NLRB v. Erie Resistor Corp., 373 U.
, 373 U. S. 236
(1963), quoting NLRB v. Steelworkers, 357 U.
, 357 U. S.
-363 (1958). I think it unjustified to depart from
our accustomed mode of review. Accordingly, I respectfully
The Court suggests that the Court of Appeals' order cannot reach
the Union because the order, as it affects the Union, is not
literally within the compass of Fed.Rule Civ.Proc. 65(d). But the
policy underlying Rule 65(d) is that of not having
"'order[s] or injunction[s] so broad as to make punishable the
conduct of persons who act independently and whose rights have not
been adjudged according to law.'"
Golden State Bottling Co. v. NLRB, 414 U.
, 414 U. S. 180
(1973), quoting Real Knitwear Co. v. NLRB, 324 U. S.
, 324 U. S. 13
(1945); see United States v. Hall,
472 F.2d 261 (CA5
1972). Cf. United States v. New York Tel. Co.,
434 U. S. 159
434 U. S.
-178 (1977). Here, the Union was a party to the
administrative proceedings, the Union's rights were adjudicated
therein, it had the opportunity to secure judicial review of the
terms subsequently enforced, it had notice that enforcement would
be requested, it doubtless has notice of the terms of the
enforcement order itself, and extension of the order to reach the
Union is urged to ensure that the Court of Appeals' determination
of the cognizability and scope of the Union's right of access will
be fully respected. Thus, the Union is, in practical effect, as
much a party as any typical defendant who has been given an
opportunity to be heard, but who has declined to avail itself of
The Court speculates, however, that the Board would not initiate
contempt proceedings in the event of Union disclosure. That
observation assumes without basis that the Board would acquiesce in
the Union's disregard of the Board's own directives.
The Union has been the certified representative of the Company's
employees since about 1943, in approximately 28 different
bargaining units. The Union was first certified by the Board in
1971 as the representative of operating and maintenance employees
of the production department of the Monroe Power Plant, wherefrom
this controversy arose.
The Union's disregard of the conditions of release may also
violate the Union's duty to bargain in good faith under § 8(b)(3)
of the Act, 29 U.S.C. § 158(b)(3), Comment, Psychological Aptitude
Tests and the Duty to Supply Information: NLRB v. Detroit
91 Harv.L.Rev. 869, 876 n. 49 (1978), subjecting
the Union to appropriate sanctions.
By prejudicing the interests of such employees and by eroding
its bargaining relationship with the employer, the Union may
provoke its own ouster by disgruntled members of the bargaining
unit. In certain circumstances, the Union's action might also
invite unfair representation suits by employees who are clearly
disadvantaged by the disclosure.
The Court assumes for the sake of discussion that the identified
test scores are relevant to the performance of the Union's
statutory duties. I think that assumption is well founded. The test
of relevance for purposes of the duty to disclose is a liberal
"discovery-type standard." NLRB v. Acme Industrial Co.,
385 U. S. 432
385 U. S. 437
(1967). The scores unquestionably satisfy that standard, as they
possess a substantial bearing on the issue whether the employer's
reliance on test performance denied the aggrieved employees their
contractual right to be appointed as Instrument Man unless outshone
by less senior applicants with significantly superior
As the Administrative Law Judge noted, the Union needs access to
the test scores, identified by the examinees' names, in order to
police the contract, 218 N.L.R.B. 1024, 1034 (1975). The
information would enable the Union to detect abuses in the
administration of the tests and, because the examination papers --
eliciting multiple-choice responses -- were graded manually,
grading errors are not improbable and are susceptible of detection
by a Union representative. See id.
at 1027, 1034.
Moreover, inspection of the examinees' results might disclose
unacceptable biases in the tests themselves. Inspection of test
scores and the personal characteristics of the employees tested
might reveal that certain employees are encountering difficulties
with the tests for reasons unrelated to job aptitude. Put another
way, the margin of error inhering in the examination may be
assignable to test biases identifiable with the aid of the
examinees' answer sheets. See
Comment, 91 Harv.L.Rev.
fn2/3|>n. 3, at 873-874.
The utility of such information in determining whether the test
battery fairly measures job aptitude in particular instances is
illustrated by the following colloquy between the arbitrator and an
expert witness in the Company's employ:
"THE ARBITRATOR: I guess what I am wondering about in this kind
of a test is when you grade these, you are just . . . taking the
raw score and not looking at what might be the elements in the
test. Is that right?"
"THE WITNESS: No. We would look at the elements of the test. We
always look at the parts of the test because sometimes a
performance on a particular kind of segment of any test might
indicate that we have a bad testing situation; this person really
didn't have an opportunity to do what he is capable of doing, and
you then can find out that, for example, a person's native language
might not be English, and that might account for the peculiar
thing, and you would then not even perhaps score the test."
"THE ARBITRATOR: How would you see that? How would you find that
"THE WITNESS: Well, you would see it because this particular
test has, for example, several different elements tapping different
kinds of abilities, some based on verbal use of language and some
not so heavily weighted in that direction, and you would see a
pronounced difference which is completely out of character. It just
"This is what normally happens when given the test. A test is an
overall look at engineering and physical science aptitudes. That is
a rather closely-knit set, and if one of the tests were way off,
one might then legitimately ask whether or not you had a good test
There is no reason to believe, moreover, that release of the
scores to the Union will result in dissemination to the employees
generally. The Union has no incentive, and indeed would be foolish,
to publicize test information against the wishes of an actual or
potential member of the bargaining unit. Furthermore, the Board's
order may reasonably be read to restrict the divulgence and use of
the test scores, as well as the test questions.
Even an individual employee cannot press his own grievance in
such a way as to frustrate the Union's responsibility to ensure
fairness to all members of the bargaining unit. Although an
individual employee has the statutory right to present a grievance
at any time to his employer, "the bargaining representative [must
be] given opportunity to be present at such adjustment." § 9(a) of
the Act, 29 U.S.C. § 159(a). The Company's policy to have its
psychologist explain an examinee's score to him when the examinee
has failed to make the cutoff, see ante
at 440 U. S. 307
but not to disclose the same information to the Union, is directly
inconsistent with the mandate of § 9(a). As the Administrative Law
"In essence, [the employer] here contends that, having
voluntarily chosen a particular form or mechanism to determine the
right of bargaining unit employees to be promoted, [the employer]
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. Such a program, which freezes out the bargaining
representative from participation in significant elements of the
promotion process, and seeks to substitute individual bargaining
therefor, constitutes a complete negation of the bargaining
process. . . ."
218 N.L.R.B. at 1035.
Release of the information to a psychologist alone would be
unsatisfactory. See supra
at 440 U. S.
-325. The Union would be relegated "to play[ing]
a game of blind man's bluff.'" NLRB v. Acme Industrial
Co., 385 U.S. at 385 U. S. 438
n. 8, quoting Fafnir Bearing Co. v. NLRB, 362 F.2d 716,
721 (CA2 1966).
In other contexts, the courts have generally rejected claims of
confidentiality as a basis for withholding relevant information.
See General Electric Co. v. NLRB,
466 F.2d 1177 (CA6 1972)
(wage data); NLRB v. Frontier Homes Corp.,
371 F.2d 974
(CA8 1967) (selling-price lists); Curtiss-Wright Corp. v.
347 F.2d 61 (CA3 1965) (job evaluation and wage data);
NLRB v. Item Co.,
220 F.2d 956 (CA5) (wage data),
350 U.S. 836 (1955); cf. United Aircraft
192 N.L.R.B. 382, 390 (1971) (company physician's
records not disclosable without employee's permission unless needed
for a particular grievance), modified on other issues sub nom.
Machinists v. United Aircraft Corp.,
534 F.2d 422 (CA2 1975),
429 U.S. 825 (1976); Shell Oil Co. v.
457 F.2d 615, 619 (CA9 1972) (refusal to furnish
employees' names without consent was proper when it was
"establish[ed] beyond cavil that there was a clear and present
danger of harassment and violence"). See also Cowles
172 N.L.R.B.1909 (1968) (employees'
salaries and other particularized data about employees);
Electric Auto-Lite Co.,
89 N.L.R.B. 1192 (1950) (wage
data); R. Gorman, Labor Law 417-418 (1976); Comment, 91 Harv.L.Rev.
fn2/3|>n. 3, at 873-874, and n. 35. In NLRB v.
Wyman-Gordon Co., 394 U. S. 759
(1969), in another setting, a plurality of this Court observed:
"The disclosure requirement [imposed by the Board and concerning
employees' names and addresses] furthers [statutory objectives] by
encouraging an informed employee electorate and by allowing unions
the right of access to employees that management already possesses.
It is for the Board, and not for this Court, to weigh against this
interest the asserted interest of employees in avoiding the
problems that union solicitation may present."
at 394 U. S. 767
American Federation of Govt. Employees v. Defense General
573 F.2d 184 (CA4 1978), from which the
majority seeks support, ante
at 440 U. S. 319
n. 16, involved a federal employer not subject to the National
Labor Relations Act and a construction of the federal Privacy