Appendix — Detroit Edison Co. v. National Labor Relations Board
Supreme Court brief1979
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JUN 10 197¢
MICHARL ROBAK, JR CLERK
APPENDIX
IN THE
Supreme Court of the United States
Octoser Term, 1977
No. 77-968
Derrort Epison Company, Petitioner,
v.
NationaL Lasor Revations Boarp, Respondent.
ON CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI FILED JANUARY 4, 1978
CERTIORARI GRANTED MARCH 27, 1978
INDEX
Page
SE SEE Soc p ec cab ic ccctesenncecsvedeseasads 1
Transcript of Proceedings before the NLRB, Seventh
EE, dau cCeWsawhescen asst dieeurcesscacwes 3
General Counsel’s Exhibit No. 1(a)—Charge against
employer before the NLRB ................... 104
General Counsel’s Exhibit No. 1(¢c)—Complaint and
I ov ots beS ccdvcce se coateteens 107
General Counsel’s Exhibit No. 1(e)—Answer to
GS C4 Hic e late Ke ches dscddssetecccwouees 113
General Counsel’s Exhibit No. 2—Agreement between
Detroit Edison and Utility Workers Union before
SP ED Soin d 6-00 64-544 044005 4b 06056404 ce eese 115
General Counsel’s Exhibit No. 3—Grievance ........ 120
General Counsel’s Exhibit No. 4—Letter of Clem
Lewis to Mr. E. Ruch, Detroit Edison, dated
ee hs cee cede hl eiés anea bee 4 121
General Counsel’s Exhibit No. 5—Letter of Ralph H.
Houghton, Jr. to Clem Lewis, Utility Workers
Union, dated March 15, 1973 .................. 122
General Counsel’s Exhibit No. 6—Letter of C. J.
— to Dallas Jones, Arbitrator, dated May 23, “a
BT Middn Leeks casei bab ccbu be teteed basccbers
General Counsel’s Exhibit No. 7—Letter of Clem
Lewis to Ralph Houghton, dated June 2, 1973... 125
General Counsel’s Exhibit No. 8—Letter of Ralph
Houghton to Clem Lewis re: Detroit Edison La-
bor Arbitration, dated July 10, 1973 ............ 127
General Counsel’s Exhibit No. 9—Letter of Mr.
Houghton to Mr. Lewis, dated July 18, 1973 .... 132
General Counsel’s Exhibit No. 10—Letter of Mr.
Houghton to Mr. Lewis, dated August 6, 1973 ... 134
General Counsel’s Exhibit No. 11—Letter of Clem
Lewis to Dallas Jones, dated August 9, 1973 .... 136
ii Index Continued
Page
General Counsel‘s Exhibit No. 12—Letter of Clem
Lewis and Ralph Houghton to Dallas Jones,
PO RR eer rr ee 138
General Counsel’s Exhibit No. 14—Submission Ques-
tion for resumption of Hearing in Re: Detroit
Edison Arbitration Grievance ................. 140
Respondent’s Exhibit No. 1—First step meeting. .... 141
Respondent’s Exhibit No. 2—Memorandum of Paul
Murphy, Jr. to R. Sprayberry re: First step
EEE, -chbbs bbe 4 vse bbkused ved ceeded 144
Respondent’s Exhibit No. 3—Minutes of grievance—
ETE 664 Kl dnbanhasidnuksacdueaassakeach annie 145
Respondent’s Exhibit No. 4—Letter of W. K. Pence
to Peter P. Johnson re: Step 2 of grievance..... 149
Respondent’s Exhibit No. 5—Letter of R. W.
Schleicher to Peter P. Johnson re: grievance.... 151
Respondent’s Exhibit No. 6—Letter of Peter Johnson
to W. G. Meese, Pres. Detroit Edison re:
EE, sn 6. twee ecdddensubaded agers cecnas 154
Respondent’s Exhibit No. 7—Proceedings and testi-
mony taken before a board of arbitration between
Detroit Edison and Utility Workers Union ..... 155
Respondent’s Exhibit No. 8—Proceedings and tran-
script taken before a board of arbitration con-
WE. Gun dn Kan canienaccucnuecarecs dices deck a 219
Respondent’s Exhibit No. 9—Proceedings and tran-
script continued, discussion off the record ...... 268
Respondent’s Exhibit No. 10—Direct examination of
NT MIE WiiGi obs cah ia huge gt ecg dae 302
Respondent’s Exhibit No. 11—Proceedings and tran-
re MN 6 ds 5.040Neth back cane ebeuecdlo: 331
Respondent’s Exhibit No. 13—Study of Selection
Tests for instrumentmen in the power plants ... 343
Respondent’s Exhibit No. 14—Supplement to revali-
dation research on employment selection tests .. 354
ee OF
Index Continued iii
Page
Respondent’s Exhibit No. 15—The multi-aptitude “s
DD ccocscdpedadeceadeetpsnewadnnseseesesse?
Respondent’s Exhibit No. 16—Aptitude test continued “
—Formulation ......---eeeeeeeeeeeerete® or
Respondent’s Exhibit No. 17—Aptitude test continued on
Arithmetic reasoning ......---++++s++*" ah :
’s Exhibit No. 18—Aptitude test continue
—. Three: Mathematical reasoning ...------ 416
Respondent’s Exhibit No. 19--Test items ........--- 424
Respondent’s Exhibit No. 20—Ethical Standards of a
Psychologists .....---+eseeeeererreseseeets ans
Respondent’s Exhibit No. 21—Introduction to testing 449
Respondent’s Exhibit No. 22—-Answer sheet for apti-
tude test ......-ccceeeceeececeeeeeseees pan
Respondent’s Exhibit No. 23—Revised Minnesota om
Paper Form board test .....-.++++++s+eeerrree
Respondent’s Exhibit No. 24—Aptitude test ... a 449
Order of the Supreme Court granting the Petition a
Bae WE occ cccccsccccosccceescccscsouccssecs
Docket Entries
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WASHINGTON, D.C.
Case No. 7-CA-10276(2)
Tue Derrorr Epison Company, Respondent
and
Locat 223, Urmiry Workers Union or Amenica, AFL-CIO,
Charging Party
4.4.74 Charge filed
8.8.74 Complaint and Notice of Hearing, dated
8.16.74
9.17.74
9.23.74
9.23.74
1.29.75
2.21.75
6.30.75
7.18.75
7.24.75
8.10.77
10.27.77
11.22.77
Answer of Respondent the Detroit Edison Com-
pany, dated
Order Denying Request for Postponement, dated
Hearing opened
Hearing closed
Administrative Law Judge’s Decision, dated
Respondent’s Exceptions To Administrative Law
Judge’s Decision, dated
Board’s Decision and Order, dated
Respondent’s Request For Reconsideration, dated
Order Denying Motion, dated
Decision of the Court of Appeals, dated
Petition for Rehearing, filed
Denial of Petition for Rehearing, dated
2
The following judgments and opinions are located at the
following places in the Appendix to the petitioner’s petition
for a writ of certiorari:
a. Decision dated August 10, 1977, by the Sixth Circuit
Court of Appeals, App., p. la-12a.
b. Denial of petition for rehearing by Sixth Circuit dated
November 22, 1977. App., p. 13a.
c. Decision of NLRB dated June 30, 1975. App., p. 14a-
17a.
d. Decision of Administrative Law Judge dated January
29, 1975. App., p. 18a-59a.
e. Arbitration opinion and award dated December 3, 1973.
App., p. 60a-76a.
f. Arbitration opinion and award dated October 23, 1974.
App., p. 77a-87a.
3
[1] BEFORE THE NATIONAL LABOR RELATIONS BOARD
SEVENTH REGION
Case No. 7-CA-10276(2)
In the Matter of:
Tue Derroir Epison Company, Respondent
and
Locan 223, Urmiry Workers Union or America, AFL-CIO,
Charging Party
418 Book Building
Detroit, Michigan
Monday, September 23, 1974
Pursuant to notice, the above-entitled matter came on for
hearing at 10:30 o’clock a.m.
BeEForeE:
Honorable Smwwney J. Barsan, Administrative Law Judge
APPEARANCES:
Mr. Joun A. Craramiraro, National Labor Relations
Board, Seventh Region, 500 Book Building, Detroit, Michi-
gan 48226; appearing as Counsel for the General Counsel.
Mr. Ratpa H. Hoveurton, Jr., Fischer, Franklin and
Ford, 1700 Guardian Building, Detroit, oe 48226;
appearing on behalf of the Respondent.
[2] Apprarances (Continued) :
Mr. Ciement J. Lewis, Utility Workers Union of Ameri-
ca, AFL-CIO, Suite 605, 815 16th St., N.W., Washington,
D.C., 20006; appearing on behalf of the Charging Party.
[3] ConTENTSs
WIrTNEss Drrect Cross Reprect ReEcross
Clem Lewis 12 35 71
+ aes =~ Pa
Dr. Marvin Dunnette 88 100
106 113 119
123 —
Dr. William Roskind 123 146
155 164 169
Exnairsits
F
iii oR IpentTiFIcaTIon Iw Evipence
1(a) through 1(h) 5 5
: 13 13
: 14 16
: 17 18
z 18 19
: 24 24
; 26 26
: 27 27
27 28
10 28
11 and 12 29 >
See Page 28
31 31
Respondent’s
1 45 46
4
[3-A] Exuusrts (Continued)
For Ipentirication In Evipence
Respondent’s
2 46 47
3 47 47
4 47 48
5 48 49
6 49 49
7 through 11 50 52
12 53 54
13 58 59
14 59 60
15 61 63
16 65 66
17 66 66
18 66 67
19 67 137
20 136 136
21 140 141
22 143 143
23 144 144
24 144 145
25 176 176
[6] Mz. Hoventon: Your honor, as you have probably
noted in a brief perusal of the formal documents, the case
involves an issue as to whether or not the Edison Company
has violated the Act by refusing to disclose certain infor-
mation to the union, regarding psychological aptitude
testing.
I think most of thé facts in this case will be agreed to
and I don’t see any dispute in that area. We’ll be looking
primarily at the issue and whether or not the union in this
particular has a justification for receiving this information.
6
Without detailing all of the facts, I would like to just
review the three points or pieces of information I think the
union desires to obtain, and advise you as to the company’s
position.
The job that we’re talking about here is an instrument
man job in the powerplant. A psychological aptitude test
battery, consisting of two tests, was used in conjunction
with selecting applicants to fill vacancies in the instrument
man job. In order to be considered and fill that job, you
must have received an acceptable score on the psychological
aptitude test battery. The test itself consists of two tests—
that is the battery consists of two tests—the EPSAT and
the Minnesota [7] Form Board test, two psychological ap-
titude tests that were given to all the applicants.
The union has requested basically two pieces of informa-
tion. They have asked that the company turn over the tests
themselves, the actual tests that are used. The company
has declined to do that.
The company has provided the union with various sample
types of questions that are found on these tests, but has
taken the position that the tests themselves are confidential.
And secondly, to disclose them to the public, would infringe
upon the future validity of the tests as they are used in
future testing programs.
The company has offered to do two things to appease the
union in this case. One, our position is we would be willing
to disclose these tests to a qualified industrial psychologist
for his perusal, for a determination on behalf of the union.
We have also indicated to Mr. Lewis, the spokesman for the
union, that we would permit him to take the test himself.
But we feel we cannot, in fairness to the validity of the
tests and our position, disclose the actual test itself.
Two other pieces of information the union desires are
the answers, that is what we would think of as the answer
ll i wwe
7
sheets for individuals that have taken the test, and also the
actual scores obtained by individual employees.
We have declined to disclose those pieces of we
[8] unless we have the employee’s consent. We roth
to furnish all that information to the union wi te A on
ployee’s consent. Our position, again, has ive ayn
the employees took the test they were eon abe
results of their scores would be kept oo unle tem
employee agreed to have them released. If t e m .
agrees to have them released, we have no objection
nishing that information to the union.
Now, it’s within this framework that we confine —-
here today, before you, on the central issue, ry : “
whether or not the company should be required to disclos
the actual tests themselves to the union. Thank you.
a witness called by and on behalf of the General Counsel,
being first duly sworn, was examined and testified as
follows:
Drrect ExaMINaTION
Jupcz Barsan : Be seated, please.
i i i d you state
_ (By Mr. Ciaramitaro) Mr. Lewis, woul
an Hs Road and address for the record? A. My — ?
Clem Lewis, my address is 815 16th Street, N.W., Room 605,
hington, D.C. 20006.
"e “~ Lewis, by whom are you presently employed? -
I work for the Utility Workers Union of America, AF
"- And how long have you been employed by Utility
rkers? A. More than twenty-five years.
_ What is your current position with the Utility Work-
ers Union? A. My title is Director of Services for the
National Union.
8
Q. And how long have you had that position? A. Since
1970.
Q. And could you very briefly describe what your duties
are as director of services? A. Yes, I’m in charge of re-
search, education, arbitration [13] services, aids to nego-
tiations to our various unions throughout the country, and
matters of that kind.
Q. Now I direct your attention to January of 1972. Did
your union have a then current collective bargaining agree-
ment with Detroit Edison Company, covering its Monroe
Powerplant? A. We did.
Q. I show you what has been marked for identification
as General Counsel’s Exhibit 2 and ask you whether or not
that’s the agreement to which you have referred?
(The document above referred to was marked General
Counsel’s Exhibit No. 2 for identification.)
A. This is the agreement.
Mr. CraraMiTaRO: I now move its introduction into evi-
dence.
Mr. Hoventon: No objection.
Jupce Barsan: Hearing no objections, General Counsel’s
Exhibit No. 2 is received.
(The document heretofore marked as General Counsel’s
Exhibit No. 2 for identification was thereupon received in
evidence. )
Q. (By Mr. Ciaramitaro) Now, Mr. Lewis, does that con-
tract contain what can be referred to as a criteria for pro-
motion clause? A. It does.
Q. Is that clause Article Eight, Section thirty-eight? A.
Yes. There are two clauses on promotions, but the one [14]
you refer to is correct. A-thirty eight, and there is another
one called Seven Article VII, 13, on page thirty.
——
9
Q. Okay, thank you, Mr. Lewis. Now directing your at-
tention to January 13, 1972, a grievance referred to as PMO
123, did it arise under that contract? A. Yes, it did.
Q. Have you seen a copy of that grievance? A. Yes, I
did.
(The document above referred to was marked General
Counsel’s Exhibit No. 3 for identification.)
Q. I show you what has been marked for identification as
General Counsel’s Exhibit No. 3 and ask you is that what
—the document you just referred to? A. Yes, this is a
copy of it.
Mr. Craramirtaro: Your honor, I now move that it be intro-
duced into evidence, except for the handwritten writing at
the bottom of that page, which reads: ‘‘Not anyone, rec,
r-e-c-, with a vertical line’’. And then the ‘‘Mr. Wiley, old
test. Did they’’. That is not offered. Just offering for the
basic grievance itself.
Mr. Hoveuton: We have no objection, with the under-
standing as counsel discussed before on the record, that we
will introduce the entire grievance procedure and arbitra-
tion.
Jupog Barsan : Hearing no objection to General Counsel’s
Exhibit No. 3, it is received.
[15] (The document heretofore marked as General
Oounsel’s Exhibit No. 3 for identification was thereupon
received in evidence. )
Q. (By Mr. Ciaramitaro) Now, Mr. Lewis, was that griev-
ance, to your knowledge, processed beyond just the filing
of that grievance? A. Yes, it was.
Q. Did you, yourself, become involved in the processing
of that grievance? A. Yes, I did.
Q. Did you get involved in the early stages or the later
stages of the process? A. The latter stages.
10
[16] Q. (By Mr. Ciaramitaro) Referring to the grievance
PMO-123, did that grievance ever go to arbitration? A.
Yes, it did.
Q. And was an arbitration hearing held? A. Yes sir,
it was.
Q. Do you recall the dates on which that arbitration
hearing was held? A. It took several dates.
Q. So that you might not have to refer to your notes,
may we propose a stipulation, Mr. Houghton, that the arbi-
tration hearing was held on the following dates:
Mr. Hoventon: Yes.
Mr. Crarnamitano: May 23, May 24, May 30 and May 31,
all in the calendar year of 1973.
Mr. Hoventon: That’s correct, with the additional under-
standing of the continuation of the hearing, which was con-
ducted on July 18, 1974.
Mr. Cranamitano: Yes, with that understanding.
Mr. Hoventon: Certainly, I so stipulate.
Q. (By Mr. Ciaramitaro) Mr. Lewis, prior to that arbi-
tration hearing, did you, on behalf of your union, make any
request of the Detroit Edison Company for information in
relationship to [17] that PMO-123 grievance? A. Yes, I
did.
Q. Were these requests for information made in writing?
A. Yes, they were.
Q. Were they also made verbally? A. Yes, they were.
Q. These written and verbal requests were made at dif-
ferent times, is that right? A. Yes, sir, several times.
Q. Now the first request for information that was made,
was that made in writing or was that verbally? Do you
recall? A. In writing.
Q. Now, Mr. Lewis, I show you a letter dated March 5,
1973, which is marked for identification as General Coun-
sel’s Exhibit No. 4. Is that the letter that you refer to as
your first written request?
.
11
(The docuinent above referred to was marked General
Counsel’s Exhibit No. 4 for identification.)
A. Yes, this is my first written request.
Q. First request of any sort, written or verbal, is that
right? A. That’s correct.
Mz. Cianamirano: I now offer into evidence, except for
the language, the written language at the top, the word
‘*copy’’, which is circled.
[18] Ms. Hovexton: No objection.
J UDGE Bansan: Hearing no objection, General Counsel’s
4 is received.
(The document heretofore marked as General Counsel’s
Exhibit No. 4 for identification was thereupon
received in evidence.)
Q. (By Mr. Ciaramitaro) Now after you made that writ-
ten request, Mr. Lewis, did you receive any written replies
to that request? Referring to a written reply. A. Written
reply—yes, I guess I was asked to come to a meeting at the
Detroit Edison office and meet with the director of union
relations and the company counsel to see if we could come
to a meeting of the minds or something.
Q. Now I’m not asking about, are you saying that the
letter to which you’ve referred asked you to come to some
meeting? A. Yes, I believe it did.
Q. Is that what you indicated? A. I’m trying to recollect
exactly.
Q. I show you, Mr. Lewis, what has been marked for
identification as General Counsel’s Exhibit No. 5. It’s a
letter dated March 15, 1973. Is this the reply letter to which
you’ve just referred?
(The document above referred to was marked General
Counsel’s Exhibit No. 5 for identification. )
A. May I see my request?
12
[19] Q. Your March fifth letter, I show you GC4. A.
Yes.
Q. I now move its introduction into evidence.
Mr. Hoventon: No. objection.
Mr. CraramitTaro: I’d also like it to be noted that the
letter is a letter going from Mr. Houghton, himself, to Mr.
Lewis.
Q. (By Mr. Ciaramitaro) Now, Mr. Lewis——
Jupce Barsan: Just a moment. General Counsel’s Ex-
hibit No. 5 is received.
(The document heretofore marked as General Counsel’s
Exhibit No. 5 for identification was thereupon
received in evidence.)
Jupce Barsan: Go ahead.
Q. (By Mr. Ciaramitaro) Now, Mr. Lewis, the letter, in
its first paragraph, refers to a telephone conversation from
March thirteenth, is that right? A. Yes.
Q. Is that what you recall, can you relate—that was a
telephone conversation with Mr. Houghton, is that right?
A. Right.
Q. Now, could you relate that conversation as best you
recall? A. Well, I think he made it quite clear to me that
that company couldn’t give me the actual tests, test batteries
and the scores for each of the individual candidates, and
things like that, for the reasons given in his opening state-
ment—([20] confidentiality and other things. But that if I
could come over to the office, maybe something could be
worked out. And he says, as long as you’re going to be
here on this date, we’ll meet on this date, or some such
thing as that.
13
Q. Okay, that was basically the essence of your telephone
conversation? A. Right.
Q. Then this letter followed? A. Right.
Q. And the letter refers to arranging a meeting for
Monday, April 2, 1973. Was the meeting, in fact, held on
April 2, 19737 A. Yes, it was.
Q. Where was that meeting held? A. At the Detroit
Edison offices right here in Detroit.
Q. Do you recall what time of day that meeting was held?
A. I believe it was two o’clock, on time.
Q. And were persons representing both the company and
the union in attendance at this meeting? A. Just myself
for the union and the company had a couple of people there.
Q. Do you recall who they were? A. Yes, I think Mr.
Houghton was there. I believe Mr. Roskind, who’s sitting
here; and the director of union relations, Mr. Ruch. I’m
not sure about Mr. Roskind, he might have been, he might
not.
[21} Q. Now, as best you can recall, can you relate what
happened, what was said by whom, at that meeting? A.
Yes. Again, the company restated its position that they
could not give me the actual test batteries, they couldn’t
give me the individual scores, they couldn’t give me indi-
vidual’s names attached to individual scores, they couldn’t
give me the actual tests. But they did give me a sort of a
study or validation or what you might call a justification
for the type of tests that they were using for these instru-
ment people. And it was a sort of a survey they’d made
or it was a report they got from a consultant, I believe,
from somewhere else, which kind or justified the type of
test they were using.
Q. So they gave you some things, is that right? A. Yes.
Q. Did they give you any of those items that you had
requested? A. No.
Mz. Hoventon : Excuse me, are you referring, by request,
to the request of March?
14
Tue Witness: I believe I asked for something about vali-
dation in that letter, and the report by the National Com-
pliance Company, is that what you mean?
Mr. Craramrtraro: You mean that report?
Tue Witness: Let me—they gave me nothing for the in-
dividuals, nothing for the actual test batteries, nothing for
grading, no scoring. They gave me a report by the, I believe
[22] was the National Compliance Company. And they
gave me some kind of a survey they had made of their own
psychologist, sort of justifying the type of test they were
using. Now whether that was a strict validation or not, I
don’t believe it was. I think it was a study they had done
by themselves. They were updating the test they were using
for instrument man or some such thing.
Q. (By Mr. Ciaramitaro) So it may have partially com-
plied with you request? A. All right, yes.
Q. We stipulated to the various dates of the arbitration
meetings, the last one being May 31, 1973. After that arbi-
tration hearing closed, were there other times when you
reiterated your requests for information concerning the
grievance PMO-123? A. Yes, several times.
Q. And did those take the form of written requests?
A. At the outset of the arbitration, the first morning of the
arbitration, I served on the arbitrator a request that he
order the tests or subpena the tests or whatever he could
do, and subpena these scores so that I would be in a better
position to argue this case.
Q. That written request, did you give the company rep-
resentatives at the arbitration hearings a copy of that re-
quest? A. I did.
Q. And did the company representatives at that hearing
take [23] any position with respect to your request?
A. The same position they had previously taken, that they
could not involve the actual tests and the actual scores.
They could put names alongside of specific scores. And they
went through the same argument about this was a test done
oan Aes et hee meee
15
7 gd psychologist and they were going to use it and so
orth.
Q. Were you present during all the days of the arbitra-
tion hearings? A. Yes, I was.
Q. To your recollection, were the actual tests that you
were seeking, were they ever even given just to the arbi-
trator? A. No, they were not.
Q. The test papers that you were seeking, were they ever
just given to the arbitrator? A. No, they were not.
Q. The test scores by each individual named, to your
knowledge, were they ever given to the arbitrator? A. No,
they were not.
Q. Not even the arbitrator got that information? A.
That’s correct.
Q. Did the arbitrator ever direct the production of those
items? A. No. He gave some opinions.
Q. I’m not asking you about his opinions, I’m asking you
were they ever directed. [24] A. He answered that he
didn’t think, under state law, state arbitration law, I take
it, that he could compel the company to supply the informa-
tion. So he could not meet with my request to order the
tests, and order the scores or subpena the tests or subpena
the scores or whatever, he did not have the authority in the
state law.
Mr. Hovcuton: Excuse me for interrupting, counsel, just
to keep the chronology straight, could we introduce a copy
of that written request?
Mr. Craramitaro: May twenty-third?
Mr. Hovucuton: Yes.
Mr. Craramitaro: Do you have copies?
Mr. Hovaeuton: Yes, I do.
(The document above referred to was marked General
Counsel’s Exhibit No. 6 for identification.)
16
Q. (By Mr. Ciaramitaro) I guess we can stipulate. Mr.
Lewis, I show you what’s been marked for identification as
General Counsel’s Exhibit No. 6. And is this the written
request to the arbitrator to which you just referred? A.
That is correct.
Mr. Craramitaro: I now move its introduction into evi-
dence.
Mr. Hoveuton: No objection.
Jupce Barsan: General Counsel’s Exhibit 6 is received.
(The document heretofore marked as General Counsel’s
Exhibit No. 6 for identification was thereupon
received in evidence.)
[25] Q. (By Mr. Ciaramitaro) I believe you indicated that
after the hearing closed, the arbitration hearing, even after,
you made written requests of the company for this infor-
mation, is that right? A. After the arbitration closed?
Q. After May 31, 1973, or requests that referred to your
prior requests? A. Yes. After the arbitration had closed,
the arbitrator asked the parties to submit briefs. This is
usual in most cases. And we then got into a number of
situations where I said, now I don’t know how to proceed
on the case before the Labor Board, asking for disclosure,
and if I got that disclosure my brief would be one way. If
I didn’t get that disclosure, my brief might have to be
another way. So we had to write ground rules, if you please,
on how we would write the briefs. I wanted to protect my
interests at the Labor Board. So the Labor Board hadn’t
acted on this case too quickly. I took about a whole year,
but finally Mr. Houghton, who’s here, and myself, he was
the advocate for the company and I was the advocate for
the union at the arbitration—we got down to some general
ground rules on the writing of the briefs and among the
ground rules was that—look, if you’ve got disclosure from
the Labor Board and this type of disclosure is such that it
17
gives you new argument or new food for argument, the
case can be entirely reopened. That was a stipulation we
arrived at when we submitted our briefs [26] to the arbi-
trator. But we kept arguing this case about disclosure all
the way through, yes.
Mr. Craramitaro: Your honor, I think I may be able to
very quickly go over these things via the offer into evidence
the various stipulated documents which are basically letters
and the written agreements to which Mr. Lewis has just
referred.
Your honor, I think I am now prepared to propose a
stipulation—stipulate the introduction of various docu-
ments. And they are as follows:
Stipulated exhibit GC-7 is a letter dated June 2, 1973,
from Mr. Lewis to Mr. Houghton. I’m offering all of that
document except the non-typed writing at the top, which
reads ‘‘In re: Detrvit Edison Company”’ and the bracket
on the left column of that exhibit.
(The document above referred to was marked as General
Counsel’s Exhibit No. 7 for identification. )
Mr. Hovexton: No objection.
Jupce Barsan: This is General Counsel’s Exhibit 7, it’s
received.
(The document heretofore marked as General Counsel’s
Exhibit No. 7 for identification was thereupon received in
evidence. )
Mr. Cranamitaro: Then there is GC-8, a letter, with at-
tachments, and there are three pages of attachments, dated
July 10, 1973, from Mr. Houghton to Mr. Lewis, which
makes re- [27] ference to the June 2 letter.
(The document above referred to was marked General
Counsel’s Exhibit No. 8 for identification.)
Mr. Hoventow : No objection.
18
Jupce Barsan: General Counsel’s Exhibit 8 is received.
(The document heretofore marked as General Counsel’s
Exhibit No. 8 for identification was thereupon received in
evidence. )
Mr. Craramirtaro: Then there is GC-9, a letter dated July
18, 1973, from Mr. Houghton to Mr. Lewis. That letter, in
its first sentence, indicates that this is a reply to a July 13,
1973 letter from Mr. Lewis to Mr. Houghton. We are still
looking for a copy of that July 13 letter.
And, as a further explanation, Mr. Houghton will catch
me if I go wrong, my understanding is that when this letter
was received by Mr. Lewis, that he typed in at the bottom
of page two of that letter, a reply to it, which reply is dated
July 23, 1973, and forwarded it back to Mr. Houghton. Is
that accurate?
Mr. Hoventon: Yes, that is accurate.
(The document above referred to was marked General
Counsel’s Exhibit No. 9 for identification. )
Mr. Craramitaro: So with that explanation, I would like
to offer GC-9.
Mr. Hoveuton: We have no objection. And we’d like to
indicate, your honor, we discussed the July 13 letter. Ap-
parently [28] neither of us have copies of it here. And if
it’s agreeable, we would stipulate to provide your honor
with a copy of that letter so the record is complete—either
by mail or through the Board or attaching it to our briefs.
Jupce Barsan: First, let me indicate that General Coun-
sel’s Exhibit 9 is received.
(The document heretofore marked as General Counsel’s
Exhibit No. 9 for identification was thereupon received in
evidence. )
Jupce Barsan: With respect to the asserted July 13, 1973
letter, if the parties discover the letter within 30 days after
ee es ome
19
the close of the hearing, and if you both agree—and this
includes Mr. Lewis—if all parties agree the letter is accu-
rate and should be received, I will receive it if you send it
to me with a proper stipulation.
Mr. Crarnamitaro: We can make it a joint submission.
Jupce Barsan: And I would suggest—well, General Coun-
sel, why don’t you reserve your exhibit No. 13 for the letter
dated July 13.
Mr. Craramitaro: Okay, fine.
JupceE Barsan: And we’ll leave that open in case you
submit the letter.
Mr. Cranamitaro: Next is GC-10, a letter dated August
6, 1973, from Mr. Houghton to Mr. Lewis.
(The above referred to document was marked General
Counsel’s Exhibit No. 10 for identification.)
[29] Mr. Hoventon: No objection.
Jupece Barsan: General Counsel’s Exhibit 10 is received.
(The document heretofore marked as General Counsel’s
Exhibit No. 10 for identification was thereupon received in
evidence. )
Mr. CraramitTaro: As GC-11, a letter from Mr. Lewis,
dated August 9, 1973, which is addressed to both the arbi-
trator and Mr. Houghton, which enclosed GC-12, which is a
bilateral agreement dated August 6, 1973 and executed by
both Mr. Houghton and Mr. Lewis.
(The document heretofore marked as General Counsel’s
Exhibit No. 11 for identification and General Counsel’s
Exhibit No. 12 for identification. )
Mr. Hoveuton: No objection to either of those two ex-
hibits.
Jupee Barsan: General Counsei’s Exhibits 11 and 12 are
received.
20
(The document heretofore marked as General Counsel’s
Exhibit No. 11 for identification and General Counsel’s
Exhibit No. 12 for identification were thereupon received in
evidence. )
Q. (By Mr. Ciaramitaro) Mr. Lewis, the last exhibit we
had was the letter of August 9 from you to the arbitrator,
which enclosed the written agreement between you and
Mr. Houghton, dated August 6. After August 9, 1973, do
you recall ever again making any verbal or written re-
quests for the information that you had been requesting all
along, after August 9, 1973? [30] A. After August 9,
1973?
Q. Yes. <A. Well, yes. Getting back to the chronology of
these events, on August 6 Mr. Houghton and I signed what
might be called ground rules for filing the briefs and holding
certain things in abeyance.
The arbitrator’s decision came down and it was the type
of decision which called for further activity on the part of
both of us. We had to re-examine certain employees. So
we had to have another hearing. We disagreed as to the
placement that certain employees, even after the arbitra-
tor’s decision came down. We had to have another hearing.
So at the outset of the new hearing, I again reiterated
my demand for disclosure of the tests. I said now I need
them worse than ever. I thought that the arbitrator’s deci-
sion made it quite clear to me that I should have them. I
couldn’t proceed the way I wanted to unless I got the
information. So, again, I reiterated and that was on the
re-hearing, recently. I don’t know the exact date. I have to
get my book. July of ’74.
Mr. Craramitaro: Mr. Houghton, can we stipulate that
that re-hearing date was July 18, 1974?
Mr. Hoveuton: Yes, that is correct.
Tue Witness: Yes.
ee ere Ode oe eres Wet Smee en
21
Mr. Craramitaro: I’d also like to propose a stipulation
that—I’d like to have this marked.
[31] (The document above referred to was marked
General Counsel’s Exhibit No. 14 for identification.)
Mr. Craramitano: I would like to propose a stipulation
that GC-14, that that hearing of July 18, 1974, was based
upon a submission, question for resumption of hearing sub-
mitted by Mr. Lewis, which would be GC-14.
Mr. Hoveuton: No objection.
Jupce Barsan: General Counsel’s 14 is received.
(The document heretofore marked as General Counsel’s
Exhibit No. 14 for identification was thereupon received in
evidence. )
Q. (By Mr. Ciaramitaro) So you’ve indicated that at this
July 18 hearing you made additional requests? A. Right.
Q. Now, what, if any, response was there to those requests
by company representatives at that hearing? A. The com-
pany position was the same, they couldn’t give me the actual
tests, the test batteries, the individual scores attached to
individual names and so forth and so on. It was a reitera-
tion of their previous position.
Q. Now, since the close—did that hearing close? A. Yes.
Q. Since the close of that hearing, has the arbitrator
issued any decision of any sort? A. No, it’s pending.
Q. Pending now. Mr. Lewis, referring to the grievance
PMO-123 [32] could you very briefly tell us what basically
was involved in that grievance. A. Yes.
Q. Not about the merits, but what the claim was. A.
There was a vacancy posted for six instrument repairman
jobs at the Monroe powerplant. Monroe is a city near
here. Normally people promote from within the plant,
that’s the first priority. So some ten, I believe it was ten
people, from the plant bid for those jobs.
22
If the management is unable to get people from within
the plant, they are allowed to go to other plants. The
seniority is sort of on a plant basis. The priority is on a
plant basis, if you want to call it that. The management
foreclosed the entire ten people from the Monroe plant,
who did, on the ground that they did not pass these tests.
Solely for that reason.
On the other hand, they selected people from the sec-
ond priority whom they said did pass these tests. So the
sole criteria used was whether they passed that test or
not. Now these men all agree they had a grievance.
Q. Those people who did not get the jobs are those that
filed the grievance, is that correct? A. That’s right.
Q. Obviously those that got the job didn’t file a griev-
ance? A. They didn’t file any.
Q. Those that got the job were from outside the Mon-
roe plant? [33] A. That’s correct.
Q. Those that did not get the job were from within the
Monroe plant? <A. That’s correct.
Q. During that grievance proceeding, the time it was
filed, up to now, you have requested the actual tests them-
selves?
Mr. Hoventon: I’ll object to the conclusionary nature.
We’ve had evidence that requests were made at the arbi-
tration level, but there’s been no evidence any requests
were made while the grievance was being processed.
Mr. Craramataro: I’m sorry, then. At one or another
time, including the arbitration, that requests were made,
is that right?
THE Witness: Formally the requests were made in the
very beginning and then they were made at the arbitra-
tion level, and they were discussed many times through-
23
out the proceeding. Every so often the question would
arise. Now, if I only had the tests, I could do something,
but I didn’t get them. So——
Q. (By Mr. Ciaramitaro) The question I have is what
do you need the tests for, the actual tests. A. Under the
clause, which is Article B, Section 38, it’s a sort of a
vague generalized criteria. It says normally the vacancies
are filled by members of the bargaining unit, that specific
bargaining unit, which is Monroe Plant.
And then you get into reasonable qualifications and
abilities [34] being considered. Then total length of serv-
ice would govern, and so forth. Then there is another
thing there called significant difference shall be head and
shoulders difference. These are kind of vague criteria, I
agree.
For the first time, to my knowledge, and I have been
dealing with Detroit Edison since about 1952 or 1953—and
I’ve been in on all their negotiations from about 1953 to
1970 when I left to go to Washington on this new job—
this was the first time that the tests became a new dimen-
sion. That is to say you have to get over this hurdle, pass
the tests, before we will even consider your reasonable
qualifications and abilities. If you don’t get over the tests
we won’t even admit you to an examination of further
abilities and further qualifications and, of course, you
wouldn’t get it at all.
So the length of service meant nothing. If the employee
couldn’t get over that first hurdle he just didn’t get any-
where. So I figured since this was such a very important
new dimension which I had not seen before, I wanted to
see what these tests were all about. And I wanted to see
the scores of this man versus the other man, the scores
within the Monroe plant as contrasted to the people who
got the job from outside the Monroe plant. And that is
why I made the request. That’s the first thing. You’re
asking me for reasons.
24
Q. Those are the reasons. Are there additional reasons
for these requests? [35] A. Then I’d be getting into
merits, maybe when I would get the tests. Are you asking
me what I would do with them? That would be getting
into merits and I don’t suppose the Board——
Q. What you needed the tests for? A. It’s an entirely
new dimension. It was a new hurdle over which the em-
ployees had to jump before they’d even get consideration.
Cross EXAMINATION
Q. (By Mr. Houghton) Mr. Lewis, I understand you
wanted the [36] tests because of a new dimension. Now
any other reasons other than that? A. I think that’s
really enough. Again, I don’t want to get into the merits
because this is a question of disclosure here. But I would
see the relevance of the tests to the job. Obviously if there
was Ejinstein’s theory in there I would say that was an
unfair test or things like that. I’m getting into merits,
though.
Jupce Barsan: Mr. Lewis, I don’t think we can make
that clear distinction between merits and relevance at this
point. I think it is true that I’m not going to pass on the
merit of your grievance to the extent that I’m not going to
decide whether one may or should in fact, get a job over
another, if that’s what you’re talking about, merits. But I
have to know enough about the relation of the tests to the
problem.
Tue Wirness: Okay, Now I will go back to you question,
you honor, as well as answer counsel’s question at the
same time.
Jupce Barsan: Now you answer counsel’s question, let’s
not go back to any other question.
Tue Witness: Well, all right. I must know the reasonable
relevance of the tests to the job. I got to know that. I’ve
eS ee ee ee re SO ne ee eee ne ne
25
got to know the individual score attached to the individual
name. I never got that. I must see it. I must verify it.
Q. (By Mr. Houghton) All right, now, do I understand,
Mr. Lewis, taking the second point first, that the reason
you wanted [37] to see the scores with the names was to
verify the accuracy or the determination? A. Right.
First I wanted to see if you scored everybody the same
way.
Q. I’m speaking of your response. If we could stick to
this one point for the moment. You said you wanted to
see the scores individual employees received opposite a
particular score. A. First I would have to see you scored
everybody uniformly, the same way.
Q. We’re jumping into the scoring procedure. I’d like
to stick with just the scores. You wanted to see the scores
themselves? A. Yes.
Q. And the purpose of that was to what? Verify? A.
Right.
Q. What the company had told you already. A. The
company had never told me a score.
Q. Well the scores were disclosed during the arbitra-
tion, were they not? A. No they were not.
Q. Were they not disclosed? A. No, sir, they were not.
Q. Let me finish the question—without reference to par-
ticular employees names, A, B,C,D,E,F,G? A. X, Y, Z.
That couldn’t tell me very much. I agree.
[38] Q. Were those disclosed in that fashion? A. There
was an exhibit given if that’s what you’re talking about
and it goes like this: The battery scores in grievance
PMO-31, employee one was an incumbent, employee two
got twelve point eight; employee three got twelve point
three, employee four got ten point four; employee five got
ten point four, employee six got ten point four. For those
who did not get the job, the grievance, employee one got
nine point three, employee two got eight point seven, em-
26
ployee three got eight point five, employee four got seven
point ‘‘o’’, employee five did not show up for the testing,
employee six did not show up for the testing.
Now, beyond——
Q. Excuse me. My question at this point, Mr. Lewis, is
after receiving that information you had the scores, but
you didn’t know which score went to which employee, is
that correct? A. That is correct. And this was only
twelve people.
Q. That involved all of the grievants? A. Let me go
back a bit.
Q. Before we go back. I have a specific question. There
were a certain number of grievance, is that correct? A.
Yes.
Q. Ten? A. The grievance speaks for itself. I think it
says that the people in the Monroe plant should have got
the job and not the [39] people on the outside.
Q. Does not that exhibit purport to be the scores from
the folks at the Monroe plant? A. This is what manage-
ment said, yes, without putting a name to a score. You
said employee one, employee A, employee B, and so forth.
Q. Now I’d like to turn to a second dimension and that
is the method or manner in which these types of tests are
scored. Did you, at one point, during discussions with the
company, ask for an explanation as to how these tests are
scored? A. I might have.
Q. I refer you back to the meeting that resulted from
your March 5, 1973, request. Do you recall, at that meet-
ing, having Mr. Roskind explain to you how the tests are
scored? A. I believe he gave explanations.
Q. Do you recall——_ A. But again, not with specific
names or grievants, just generalizations.
Q. Yes. I was speaking of the manner in which they’re
scored. A. Yes.
Q. Do you recall, at that meeting, for example, having
asked Mr. Roskind are those tests scored by keys or is
— Se
27
there some subjective analysis involved? A. Yes, I be-
lieve I asked that questions.
Q. And do you believe or recall Mr. Roskind reply that
these [40] are scored by keys, that there is no subjective
analysis? A. Roughly, yes, something like that.
Q. Now with respect to the tests themselves. As I un-
derstand it you said you wanted to look at the actual
tests to determine their relevance. Is that correct? Now,
first of all, in making a determination as to relevance,
have you yourself had any training in the field of psy-
chological aptitude testing? A. No.
Q. You, yourself, would not be qualified to make a de-
cision as to whether a particular test was relevant in
terms of statistical analysis, would you? A.I really
don’t know.
Q. Now when you speak of relevancy, if I understand
your answer, you’re looking at what is called the concept
of face validity. In other words, if you looked at a ques-
tion and it said do you like to go up north for your sum-
mers or down south? If that question was asked on the
instrument man test, you might well conclude that that
question doesn’t have any face validity, it’s ridiculous and
it shouldn’t be asked. Is that the type of thing you were
looking to determine? A. No, so I mentioned Einstein’s
theory, of course.
Q. Well I don’t know whether Einstein’s theory might
or might not be appropriate to instrument man work. A.
I might argue that it shouldn’t be. That would give me a
new argument for the arbitrator, which I didn’t have.
[41] Q. In other words, are we in agreement that basic-
ally what you were looking at was to determine the so-
called face validity of the various questions asked? A.
Yes. I think my reading of most of the arbitrations in this
respect indicate to me——
Q. I’m not interested in your readings of the arbitra-
tion cases. A. Well, we have to go by some barometer
and it seems where tests are employed——
28
Q. Excuse me, Mr. Lewis, where tests are—I don’t
think this is responsive. My question is why did you want
this information? And your answer is to determine the
face validity.
Mr. Craramitaro: He’s interrupting the answers to the
questions.
Jupce Barsan: The witness is entitled to give a full
explanation of why he wanted the information. If his rea-
son is based on his research you can still say that. You
may complete your answer if you have not done so.
THe Witness: My experience with these types of cases
indicates that where a test is given it must have some rea-
sonable relationship to the job at hand. It cannot—and
I won’t go into whether arbitrators at other places have
ordered the material put out on the table or given the
material to the union or things of that kind. And I’d also
find that there’s such a thing as an unreasonable cutoff
score and a reasonable cutoff score, which [42] we have
no control over whatsoever. And more than that, in this
case, what we had experienced in the past was an em-
ployee appraisal system on promotions—that is to say a
supervisor, a group of supervisors would sit in judgment
as a council and appraise employee A, B, C and D as to
one, two, three, four, five good or bad, as to his absentee
record, as to his mechanical ability, as to his cooperation,
as to his knowledge of company rules, and so forth. And
practical things. This is what we had experienced in this
company up to this time.
Now, all of a sudden, we had a psychological test hurdle
over which the employee must jump. And the management
made it very clear that he must jump that hurdle. There
is no other way. The didn’t say if the cutoff score was
ten, that if he got nine and a half and he was a twenty-
year man, he would be admitted. Or, if he got ten and a
half and he was a two-year man, he wouldn’t.
29
In other words, there was no variation there. No flexi-
bility. A twenty-year man could get one half point away
from the cutoff score and be outlawed, foreclosed. So that
was our problem.
Q. (By Mr. Houghton) Looking at the actual tests
themselves, so we’re clear. You want it, as I understand
it, for the reasons you’ve given. To look at the tests, to
determine whether or not the questions had any face
validity. A. The word validity I’m not clear on, Ralph.
It’s an expression that’s apparently used by psycholo-
gists. I wanted [43] to look at relevance, yes.
Q. Okay. Let me give you my explanation or what I
intend when I use the expression face validity. To look at
the question and see whether they look like they had any-
thing to do with the job. A. All right.
Q. Now you mentioned a cutoff score. You don’t claim,
do you, that by looking at an actual test, you thereby de-
termine what a cutoff score is? A. No. But again, as I
just said a moment ago, if I had a twenty-year man and
the cutoff score was fifty, let’s say, and he only got forty-
eight and a two-year man got fifty-one, you see. I don’t
think that’s enough of a variation to keep that twenty-
year man from getting the job.
Q. Mr. Lewis, do you know they determine, statistically,
a cutoff score? A. I saw how they do it, yes. I’m not
saying I agree with it, but I saw it.
Q. And the data necessary to determine the cutoff is
not found in the test itself, is it? A. No. I saw how they
do the scatter charts, if that’s what you’re thinking about.
And how they give the test to incumbents on the job and
then take the average and things of that nature, if that’s
what you’re talking about. I’ve seen them do that, yes.
[44] Q. I would agree with you, Mr. Lewis. If I were in
your shoes I would think I’d have a right to determine
whether the test was job related, whether it was valid
and whether, when it is applied, it’s consistently applied
and measures what it’s supposed to measure. I think that’s
30
essentially what you’re after. Now my question to you
is that in determining validity or consistency of a test,
do you not have an understanding, from this case, that
information is gathered, not from a test itself, but from
a validation study? A. Yes, I seen those. I’m not saying
I agree with that, I’m saying that’s what you do.
Q. All right, looking at this grievance PMO-123, you
mentioned in your direct examination that it did go
through the company’s grievance procedure and through
arbitration. A. That’s right.
(50] Q. (By Mr. Houghton) Mr. Lewis, in previous tes-
timony it’s been indicated that there were four days of
initial hearing before an arbitrator in this case and a fifth
date on a subsequent hearing in July of this year. Is that
correct? A. That’s right.
Q. Transcripts were made each of those days? A. Yes,
sir.
Mr. Hoveuton: I will ask the reporter to mark as pro-
posed Respondent’s Exhibit 7, the May 23rd hearing tran-
script; and proposed Respondent’s Exhibit 8, the May
24th transcript of hearing. As proposed Respondent’s
Exhibit 9, the May 30th transcript of hearing. And as
proposed Respondent’s 11, the July 18th, 1974 transcript
of hearing.
(The documents above referred to were marked
Respondent’s Exhibits No. 7 through 11 for
identification, )
{51] Jupee Barsan: Off the record.
(Discussion off the record.)
Jupce Barsan: Back on the record.
Q. (By Mr. Houghton) Mr. Lewis, I hand you what has
been marked as proposed Respondent’s Exhibit 7 through
31
11 and ask you if those are, in fact, transcripts of the
record of this case, that is PMO-123, before the arbitrator.
Jupce Baran: Mr. Ciaramitaro?
Mr. Craramitaro: Yes, your honor?
Jupcz Barsan: Subject to your further check of the
documents that have been offered, can’t we stipulate that
these are what counsel is stating they purport to be?
Mr, Ciaramiraro: Yes, you honor, I’d be willing to so
stipulate.
Jupce Barsan: Do you have any problem with that, Mr.
Lewis?
Tue Witness: What?
Jupce Barsan: That those are actually the transcripts
of the arbitration.
Tue Witness: Those are.
Jupce Barpan: Are you offering those?
Mr. Hovecuton: Yes, we would offer those at this time.
Jupce Barsan: I’m not able to talk you out of it? All
right. That was meant to be facetious, by the way. Re-
spondent’s Exhibits 7, 8, 9, 10 and 11 are received.
[52] (The documents heretofore marked as Respondent’s
Exhibit Nos 7, 8, 9, 10 and 11 for identification
were thereupon received in evidence.)
[54] (By Mr. Houghton) Mr. Lewis, I’d like to refer to
this March 5 request so that we can determine actually if
any was taken by the company. I’m referring to General
Counsel’s Exhibit 4, in which you make four specific re-
quests, is that correct? A. Yes.
Q. And with respect to your first request, the actual
battery of tests used in the matter, as I undersand it,
32
those were not furnished? We did not supply them? A.
That is correct.
Q. With respect to number two, the method of scoring
or grading and the actual criteria for finding recommended
or not recommended. Now the material for recommending
validation was [55] not in the study, is that correct? The
actual scores—employees names were not provided, but
the scores were provided? A. Right.
Q. The company did not supply actual scores with ac-
tual names. They did give, at the hearing, a generalization
of how they went about it. Is that what you wanted?
And I’m referring not to the hearing, but to this letter.
At the hearing subsequent to this letter, you were, it was
explained to you how the company went about grading
these tests, what criteria was used. A. Yes, there was a
generalization of that kind, right.
Q. And a method of scoring was explained? A. Ina
generalized way. From a psychologist’s standpoint, yes.
Q. All right, now item number three is entitled a report
on the test validation. Now the validation studies were
given to you, were they not? A. There was a validation
study given me, that’s right. The question here is there
are validations these days, and there are validations. I
could have been probably clearer in my request, but they
have now what’s called the EEOC validations, Equal
Employment Opportunity Commission validations, Now
they have validations within the company, and sometimes
the companies have to go to the EEOC and say are our
validations consistent with the new law, and Title Seven
case and all that sort of thing. [56] This all came in to
this question here. But you did give me what you consider
to be a validation study on the subject. Right.
Q. Mr. Lewis, you’re not aware, are you, of any other
validation studies on this particular battery of tests for
this job? A. No, no.
33
Jupce Barsan: Mr. Lewis, for my information, what is
a validation, What is your interpretation of a validation?
Tue Wrrness: Well, it’s a system that is used by people
who give tests to decide whether it is a fair test if given
to the same incumbents on the job now.
For example, if there were forty people in the job and
they were making four others, they might try to get a
consensus of what the forty people know and what skills
the forty people have and what dexterity the forty people
have to be able to give a test for those four others. In
other words, it’s a relevance to the job, a predictability
for the job. That’s about it. It’s kind of vague, but this is
the way it’s done as I understand it.
Jupce Barsan: And as I understand it the company
gave you the conclusions of some other organization as to
whether or not the tests were fair and relevant. And
it’s simpler—to put it in it’s simplest form?
Tse Witness: They sent some of their tests, this com-
pany is having a problem as well as our union, with the
Federal courts [57] right now. The equal employment
opportunity commission has leveled a Title Seven charge
against both of us on the grounds that the company didn’t
hire enough minorities and promote enough minorities.
And against the union because the union perpetuated a
seniority system which doesn’t help that any.
All of this happened about the same time, so the com-
pany was in the process what was fair and honorable
testing for people, And I think they engaged some con-
sultants from Texas or somewhere to go over their valida-
tion studies, those that they had made themselves, in-house
validation studies, quite apart from EEOC validation
studies to see if these were fair and proper and would
meet the standards of, let’s say, the psychological society
rather than the EEOC.
34
That’s what I’m saying. I know I’m getting -compli-
cated, but——
Jupce Barsan: Now you’ve explained to me what I
wanted to know. I’m sorry to have interrupted you, Mr.
Houghton.
Mr. Hovcuton: That’s all right, you honor.
Q. (By Mr. Houghton) So that we’re clear about fol-
lowing the judgments in question, Mr, Lewis, this request
number three, entitled report on the test validation, what
you were after there was the Detroit Edison validation?
A. Yes.
Q. And you received that? A. Yes, and if you had any
EEOC validations, I would have [58] accepted that too.
But I guess they didn’t have any.
Q. Number four says a report by the National Com-
pliance Company? A. Yes. :
Q. You received that report also? A. Yes. Which, by
the way, was critical in some ways of Detroit Edison’s
systems.
Q. The National Compliance Company did find that the
test battery was a valid test battery, with a proper—
A. Well, again, if we want to get into that report I think
it also said you promoted certain people without any tests
at all, so you get into all kinds of ramifications of that
particular report. The fact is that—I have it here, some-
where.
Q. I don’t mean to cut you off, but I think for purposes
of this hearing we are not concerned with—not so much
with what the report had to say but whether it was fur-
nished or not. A. It was furnished.
(A document was marked Respondent’s Exhibit No, 13
for identification.)
Q. (By Mr. Houghton) Mr. Lewis, I hand you a booklet
which has been tentatively marked proposed Respondent’s
35
Kxhibit 13 and ask you if you can identify that for us?
A. Yes. I believe this is a document given to me at the
Detroit Edison Company whatever date that was.
Q. For the record, you’re referring to the April second
[59] meeting? A. April second, This was the document
given to me at that time.
Q. And am I correct that this was the document given
to you in your request of paragraph three of your March
5 letter? A. Yes, this was purported to be a type of vali-
dation which Edison used.
Mr. Hovcuton: We would offer the exhibit, your honor.
Mr. CraramitTaro: No objection.
Jupce Barsan: No objection? Respondent’s 13 is re-
ceived.
(The document heretofore marked as Respondent’s
Exhibit No. 13 for identification was thereupon
received in evidence. )
(A document was marked Respondent’s Exhibit No. 14
for identification. )
Q. (By Mr. Houghton) Mr. Lewis, I now hand you what
has been marked proposed Respondent’s Exhibit 14 and
ask you if you could identify that? A. Yes, this is the
document by the National Compliance Company of Texas,
which is some kind of a consulting company which the
company used. Right, that was given to me,
Q. And was that the document that was given to you in
response to your request number four in your March five
letter? A. Yes, that’s four.
Mr. Hoventon: We would offer the exhibit, your honor.
Jupce Barsan: Any objection?
[60] Mr. Craramrtaro: No objection.
Jupcz Barpan: Respondent’s 14 is received.
36
(The document heretofore marked as Respondent’s
Exhibit No, 14 for identification was thereupon
received in evidence.)
Jupce Barsan: I assume that was given to him on the
some day, April second?
THe Witness: Yes.
Q. (By Mr. Houghton) Is that correct Mr. Lewis? A.
Yes that was, two documents I was given on that day.
Q. Now, with respect to the April second letter, you
testified earlier as to who was present? Would I be cor-
rect that in addition to the persons you named, your
Local president, Mr. Johnson was present at that meeting?
A, I don’t recall whether he was. I’m willing to agree,
Ralph, but life to me is one new face after another, so
maybe he was.
Q. You have no present recollection? <A. If he was,
that’s all right.
Q. Mr. Lewis, now in addition to the materials that
we’ve discussed in the exhibit I just introduced, did the
company disclose additional information pertaining to the
types of questions on the tests at the arbitration hearing?
A. Yes, yes. The company gave—well one thing here,
Titled, example, multi-aptitude test. Another one was
called the formulation test, a mathematical reasoning
test. These [61] were like sample tests bought off a
counter in a store, to show us that these are the kind of
things that we do. That these samples, so to speak, and,
are supposed to be some kind of relevance to the real tests.
The form board samples were here and so forth. Just
samples.
Q. Would I be correct, Mr. Lewis, that these samples
were given to you that they were representative of the
types of questions on the test, that they were not the
actual test questions. A. They were not the actual test
questions. If they were then you would have been com-
plying with my request,
37
(A document was marked Respondent’s Exhibit No. 15
for identification.)
r. Houghton) Mr. Lewis, I hand you what has
ion po thor rete sir ‘mqnaen’s Exhibit 15, titled
‘‘Multi-Aptitude Test’’, anc ask you if this is a copy of
that furnished to you at the arbitration hearing? A. Yes,
this was given at the arbitration as a sample for the arbi-
for us, I suppose.
“ae would T further be correct, looking at the front
page of that exhibit, that item roman numeral ten, paper
form board was indicative of the type of questions on the
form board test? A. Yes, in the back of that, I think is
some samples, The last two pages were samples of Minne-
board, the last three pages.
— wa west to roman numeral six, mechanical com-
prehension, [62] were those samples of certain —
questions on the EPSAT test? A. Mechanical reasoning
Q. Mechanical comprehension in this booklet? A. With-
in the book? I’m sorry, yes. I think, mechanical compre-
hension, yes, is a section of this book with some ——
Q. And questions of that type were on the EPSAT test,
is that right? A. That’s what you said,
Q. That’s what the representation was. A. Yes.
Q. Looking at roman numeral three, which is entitled
‘‘arithmetic, was a representation made that those sam-
ples under Roman numeral three, were like types of
questions on the EPSAT test? Pe Yes. This little book
le arithmetic questions.
em on said that—— A. And you said that the
company said that these were likely the questions given
test.
"* has Oe same is true with Roman numeral one, vo-
cabulary? A. Yes, the first section in this book was
vocabulary. And you said that this was a vocabulary test
pretty much similar to that given in a real test.
38
Q. Now am I also correct the company represented, with
rcspect [63] to Roman numerals two, four, five, eight
and nine, that those matters did not have any particular
relevance to the EPSAT test? A. Yes, the company said
that’s true, called general information was not used. Four,
called number series, was not used. Five, called figure
classification, was not used. Seven, word recognition, was
not used; and eight, scrambled letters, was not used.
And nine, checking, you said, was not used.
Q. Thank you, Mr. Lewis. We would offer this exhibit.
Mr. Craramitaro: No objection.
Jupce Barsan: Respondent’s 15 is received.
(The document heretofore marked as Respondent’s
Exhibit No, 15 for identification was thereupon
received in evidence.)
Q. (By Mr. Houghton) All right, Mr. Lewis, with re-
spect to information on what we have referred to as the
EPSAT test, is it your understanding that this is a six-
part test? A. The company said it was, yes. A series of
tests.
Q. And, referring to the previous exhibit, you were only
supplied with copies of questions that would pertain to
three of the six sections on EPSAT and the form board?
A. I believe that’s what the company said,
Q. Now, with respect to the other three sections of the
EPSAT test, did the company endeavor to provide you
with examples of the types of questions on those re-
maining three sections? A. The company gave me a—a
thing called formulation, if that’s what you’re talking
about, which gave just a few samples, [64] two samples
of questions, physical science comprehension, which gave
one sample and arithmetic reasoning, which gave two
samples. Is that what you’re talking about?
Q. Yes. Now this information was given to you at the
arbitration hearing? A. That’s right.
39
Q. In addition to that information, with respect to these
three areas, that is, formulation, physical science compre-
hension, and arithmetic reasoning, Were you given further
examples of each of those? A. I got another one called
mathematical reasoning, is that what you’re talking about?
Q. Yes, that’s one of them. A. It’s a different title,
mathematical reasoning, versus——
Q. Arithmetic reasoning. A. Arithmetic reasoning, but
anyway, we were supplied some samples of mathematical
reasoning questions. Right.
Q. Were you also supplied with further examples of
physical science comprehension questions? A. Just a mo-
ment. Yes, we were supplied with some homemade, there
were homemade, these were not store bought. Is that what
you are talking about? Questions about physical science
comprehension, which our instrument found incredible.
Q. And were you supplied, also, with additional ex-
amples of [65] formulations type questions? A. What
would be the general title of formulations? Computer,
what do you call it?
Q. Sixty-two. A. I got sixty-two, about arithmetic rea-
soning?
Q. Formulation. A. Well, we differ as to title on that.
You mean we got some further instructions or what’s
known as part three and its title up on top, computer pro-
grammer, arithmetic reasoning and so forth. Yes, I know
what you’re talking about. We got it.
(A document was marked Respondent’s Exhibit No. 16
for identification.)
Q. (By Mr. Houghton) Mr. Lewis, I hand you a copy of
proposed Respondent’s Exhibit 16 and ask you if that is
the information you were given, which had two questions
in each of the three categories we just discussed? A. Yes,
I have it in my book, that’s the one.
Q. And that was furnished at the arbitration hearing?
A. Yes, it was.
40
Mr. Hovcuton: We would offer the exhibit.
Jupce Barsan: What number is that?
Mr. Hovexuton: Sixteen,
Jupce Barsan: Any objections?
Mr. Craramitaro: No objections.
JupcE Barsan: Respondent’s 16 is received.
r
(66] (The document heretofore marked as Respondent’s
Exhibit No. 16 for identification was thereupon
received in evidence.)
(A document was marked Respondent’s Exhibit No. 17
for identification. )
Q. (By Houghton) Mr. Lewis, I hand you what is
marked proposed exhibit 17 and ask you if this is the addi-
tional information you were respect to the arbitration hear-
ing? A. Yes, I have this in my book, which indicates it
was given at the arbitration hearing.
Mr. Hoventon: We would offer 17.
Mr. Craramitaro: No objection, your honor.
Jupce Barsan: Respondent’s 17 will be received.
[66] (The document heretofore marked as Respondent’s
Exhibit No. 17 for identification was thereupon
received in evidence.)
(A document was marked Respondent’s Exhibit No, 18
for identification. )
Q. (By Mr. Houghton) Mr. Lewis, I hand you what has
been marked as proposed Respondent’s Exhibit 18 and
ask you if that’s a copy of the information furnished you
about formulation of the EPSAT test. A. Yes, I have
that in my book, which indicates it was given at the arbi-
tration hearing.
41
Mr. Hovenuton. We would offer Exhibit 18, your honor.
Mr, Ciaramitaro: No objection.
[67] Jupce Barsan: Respondent’s Exhibit 18 is received.
(The document heretofore marked as Respondent’s
Exhibit No. 18 for identification was thereupon
received in evidence.)
(A document was marked Respondent’s Exhibit No. 19
for identification.)
Q. (By Mr. Houghton) Mr. Lewis, 1 hand you what has
been marked proposed company exhibit 19 and ask you if
this is a copy of the questions showed to you on computa-
tion in the tests? A. Yes, this is the one I refer to as
homemade, which our men found incredible,
Jupcz Barsan: Do I understand that you showed some
or all of these samples to your members involved?
Tue Wrrness: No, no. We got this after the grievance.
Jupce Barsan: You showed them at some point?
Tue Wirness: At the hearings, yes, we asked the men,
did you ever see these before, and so forth. Yes, that type,
the grievance. Is that what you mean?
Jupce Barsan: I’m asking you. You’re giving the evi-
dence. You showed these samples, at some time or other, to
the actual grievants?
Tue Wiryess: At the hearing.
Jupcz Barsan: Mr. Houghton, we’re running close to
one o’clock. Are you going to be much longer?
Mr, Hoventon: Probably fifteen minutes or so.
Jupce Barsan: Go ahead.
[68] Q. (By Mr. Houghton) I refer you to General Coun-
sel’s Exhibit 10, which is a letter dated July 18, 1973, from
42
myself, sent to you. Attached to that letter is certain infor-
mation regarding test procedures, is there not? A. Yes.
Q. You were furnished with those attachments at the
time you received the letter? A. Yes.
Q. And am I correct that that information purports to
be an explanation of battery weights, raw scores and items
on the Minnesota form board EPSAT test? A. Yes.
Q. And—— A. That is what you reported to me,
method used.
Q. And the last attachment, would I be correct that
that demonstrates the weights and raw scores on the tests?
A. Yes, if I understand it correctly the raw scores are
reconciled to a weight and the two weights put together
register the man’s total score. Is that it?
Q. All right, now, Mr. Lewis, you understand, do you
not, that these tests we’re talking about, this test battery,
is designed to measure psychological aptitudes? A. That
is the way they reported it, yes.
Q. And the test is not designed, as you understand it,
to measure job knowledge, is it? [69] A. No, I guess
not. At least that’s what you said.
Q. With respect to determining pay rates in the com-
pany, would I be correct that all pay rates for all jobs,
including this job in questions, are negotiated between the
company and the union? A. Yes, they are negotiated.
Q. And there are specified questions where you go from
a specific starting to a final maximum range? A. Yes.
Q. And this test we’re talking about was not used to
determine pay rates as such, was it? A. No.
Q. In terms of the scores, were you also advised that
the company used this test in the fashion of a go or no go
situation. In other words they were not using test scores
to compare one person with another. A 10.3 or a 10.4 ora
10.5, it was not used for internal comparisons like that,
was it? A. That’s correct. You said that this was a £0,
no go, pass, fail system. You either got over the hurdle or
you didn’t and if you didn’t get over the hurdle you didn’t
43
get considered for the job, is that what you mean? A.
Yes.
Jupce Barsan: Just to clarify my own thinking, we are
talking about a promotional situation.
Tue Witness: Yes,
[70] Jupce Banpan: Are we not?
Tue Wrirness: Yes, in this case.
Jupce Barsan: Mr. Houghton?
Mr. Hoveuton: If we’re speaking the same language,
there were openings within a job classification. Under the
contract, the employees can sign up on a bid sheet and bid
for that opening and that’s what we’re talking about.
Jupce Barsan: And you permit—for my purposes, i
find—the contract—do you permit lateral movement or 18
this only up and down?
Mr. Hoveuton: The employee can bid wherever he
wants, subject to the terms of the agreement.
Jupce Barsan: Thank you.
Tue Witness: The priorities within the individual head-
~uarters, to start with, I think ] pointed that out in the
urst place. The first priority is there, then the other pri-
orities come in.
Q. (By Mr. Houghton) Mr. Lewis, in your testimony, I
believe you stated earlier, that when the grievance was
initially filed, that demands were made for actual copies
of the tests? <A. Yes.
Q. The only evidence that I’ve seen is that after the
grievance went through the first, second and third steps,
and when it got to arbitration, I believe, on May 23,
you furnished a written request for some certain informa-
tion. Prior thereto, [71] you’re indicated your first for-
mal request was March 5, in your letter to the company.
44
Now what actual request for the information was made
prior to March 5, 1973—of your own knowledge? A. I
really don’t know. When they asked me to come in and
handle the arbitration case for them I said well, we’d
better get disclosure on these tests and on these cutoff
scores and on these grades which these people got. That’s
my number one proposal.
So I told the union we’d better immediately demand
disclosure. If we’re going to an arbitrator it’s a little
different than processing a case with a supervisor.
Q. So prior to March 5, you’ve had no involvement and
wouldn’t know whether there was or wasn’t any request?
A. No, I don’t. pe
Mr. Hovenuton: That’s all I have.
Reprrect ExaMInaTION
Q. (By Mr. Ciaramitaro) All of these sample tests,
saniple questions, you were never provided the actual
questions for the [72] test that was used? A. No, sir
we were not.
e @ &
{80} Direct Examination
Q. (By Mr. Houghton) Mr. Lewis, at any time, did you
ask any of your members, employees of the Edison Com-
pany, if they would consent to the company’s releasing
their test scores? A. No, and I might add I wouldn’t dare
because we are the collective bargaining agents and the
company doesn’t deal with individuals, they deal with us.
Q. You made no such request? A. N o, and I will not.
Q. Now at any time, Mr. Lewis, after you were furnished
with this information we've been discussing, did you or
your union, at any time, turn it over to or seek to consult
with a professional psychologist? [81] A. I briefly talked
45
with a fellow from the university of Wisconsin, who is a
friend of mine, if that’s what you want to know.
Q. But you did not formally turn this material over,
for example, to a professional psychologist and say——
A. No.
Q. ——excuse me, can I finish? You have some material
the company has furnished me, can you make a determina-
tion for me as to whether this is or is not a valid test?
A. My view on the question is like the one I just answered.
We have twenty-five bargaining units here, each is an in-
dependent bargaining unit. There were twenty-five elec-
tions over the years and there are twenty-five units. These
twenty-five units are certified on wages, hours and working
conditions.
This question of us giving certain material from the
company and turning it 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 forth for
promotion. It shouldn’t have to be sent to some profes-
sional psychologist. Why shouldn’t the chairman of each
plant understand the criteria for promotion? This is our
problem.
Q. Without appropriate training, fortunately or unfor-
tunately, I guess, we are not able to understand all mat-
ters. My only question was you did not seek outside
psychological consulting services at allf [82] A. Not in
that sense. I talked to a friend of mine. He’s familiar with
this subject and I just wanted to get what he thought,
that’s all.
[83] Dr. Marvin DuNNETTE
(a witness called by and on behalf of the Respondent,
being first duly sworn, was examined and testified, as
follows:
46
Direct ExaMINaTION
Jupce Barsan: Be seated, please.
Q. (By Mr. Houghton) Sir, will you give us your full
name for the record, please? A. Marvin D. Dunnette.
Q. Mr. Dunnette, where do you reside? A. Minneapolis,
Minnesota; 501 South Medow Land.
a What is your profession? A. Industrial psycholo-
gist.
Q. Do you have a degree in industrial psychology?
[84] A. I have a Ph.D. degree.
Q. When did you receive that? A. 1954,
Q. Where did you receive that degree? A. University
of Minnesota.
Q. Prior to receiving your P’h.D., what college educa-
tional training did you have in addition to that? <A. I had
a bachelor’s degree in chemical engineering.
Q. Since receiving your Ph.D. in 1954, will you give us
a sketch of the types of activity you have been involved
in in the industrial psychology field? A. I worked at
Three-M Company for five years. I was in charge of per-
sonnel research there. I then joined the faculty of the
University of Minnesota, in charge of industrial and or-
ganizational graduate training. I directed the planning
and training of graduate education in the field. I still hold
that position as professor of psychology. I’ve done a good
deal of research over the years in areas of validation of
tests and selection of employees in various kinds of activi-
ties—clerical jobs, engineering jobs, sales, management.
And have been involved in a number of other psychological
researches.
Q. In addition to your responsibilities at the University,
do you conduct any other business? A. I am president of
a consulting firm called Personnel Decision, Incorporated.
It’s been in operation since 1967, and [85] does man-
power research for both business and also under govern-
ment contract.
47
Q. While you’ve been involved in this field, have you
had an opportunity to do any writing in this field, in terms
of books and papers? In the psychological testing area?
A. I’ve written a number of articles on various kinds of
research studies and I also have, I guess, three major
books, one called Personnel Selection and Placement,
that is most relevant to testing and validation.
Q. And your other two books? A. One is ealled Psy-
chology Applied to Industry, and the other, Managerial
Behavior Performance Effectiveness.
Q. These have all been published? A. Yes.
Q. In connection with your professional activities, Doc-
tor, did you have occasion to involve yourself in testing
programs, validity studies and matters of that sort? A.
Yes, on very many cases.
Q. Prior to the instant case, have you had any business
connections, in the past, with The Detroit Edison Com-
pany? A, No, I have not.
Q. Is this the first instance you’ve been retained as a
consultant by that company? A. That’s right.
Q. And will you tell us how you first had contact with
the—[86] this case? A. Dr. Roskind called me, I believe,
in August, and asked me if I might be available to testify.
And he related to me on the phone the general nature of
the case. And we decided on a possible date. And I then
planned to testify. I am, you know, today.
Q. Now when you first spoke with Dr. Roskind and
gained your first familiarity with this problem, what was
your understanding of the problem and what you would
be asked to do? A. My understanding, at that time, was
that the issue was related to whether psychological tests
should be made available to laymen and, believe we dis-
cussed briefly on the phone, the question of the ethics
related to the release of such tests.
We also discussed, briefly, the problems of interpreting
or releasing test scores, rather than the interpretation of
those scores.
48
Q. All right, backing up to your first consideration,
ethics. Are there any ethical problems or standards that
are involved in releasing of this nature? A. There are
two items of the ethical code of the American Psycholog-
ical Association. One relating to the release of scores to
unauthorized persons, and the other related to the release
of psychological tests themselves to persons who are not
otherwise equipped to interpret those tests,
Mr. Ciaramitaro: I object to this line of questioning,
{87} so far as it relates to the ethical problems that may
or may not be involved in respect to these examinations.
Although I can respect the ethics problems of any pro-
fessional person, we are concerned of statutory duties, not
ethical duties and responsibilities and our concern here in
this case is whether there is a statutory obligation to make
available information relevant and necessary for a collec-
tive bargaining representative to perform his duties. Not
whether that may involve an ethical problem for some
other group or profession.
Mr. Hoveuton: We have a problem here, I think, where
ethical standards may or may not conflict with statutory
requirements. It’s like the lawyer who is ordered by judge
or court to do something which he feels would violate his
code of ethics and declines to do so. And I think that for
the fact finder to make an intelligent decision, we’ve got
to have that information before the judge.
Jupce Barsan: Mr. Houghton, I have this difficulty.
The reasons that respondent refused to or failed to give
the information may be relevant, to be considered in terms
of the testimony of the person who made the decision.
What disturbs me here is that this is testimony in the
abstract. This is testimony, for example, with respect to,
let’s limit it to the ethics problem right now. This is
testimony with respect to this gentleman’s ethics and his
understanding of the ethics of a certain group. But it
49
doesn’t help me very much with respect [88] to the rea-
sons that someone in the company made the decision.
Mr. Hoveuton: If I may interject, your honor, I totally
agree with that line of questioning. I was about to have
this witness indicate the same ethical standards would
apply to all psychologists. I do have the company psychol-
ogist. I’ll reserve the question until we have him.
Jupce Barean: I’d much rather have here, this kind of
thing from a person who made the decision and who can
be cross-examined on the decision. This witness may be
and is, very competent to testify on the general standards
in the profession. But cross examining him on the general
standards of the profession is not going to get us very
far at all.
Mr. Hoventon: As I indicated, we have the gentleman
in the company who made the decision. I’ll wait until we
get to him.
Jupce Barsan: I’m going to sustain the objection to
that point, that I want to know and I want to hear from
the people who were directly responsible. I assume, how-
ever, you have other questions of this witness.
Mr. Hoveurton: Yes, I do,
Q. (By Mr. Houghton) Doctor, when you were initially
confronted with this problem, had the Detroit Edison
Company endeavored to provide you with certain infor-
mation? <A. Yes.
Q. Regarding the test battery we’ve been discussing
today? [89] A. Yes, I received the validity study from
the test battery. I received the arbitration, the preliminary
arbitration decision, I received a general explanation in
the form of a letter from Dr. Roskind, detailing some of
the background as to what had occurred,
Q. Anything else you received? A. I received a4 copy
of the letter that was referred to this morning, the one
50
that you had written, the one to which you had attached
pages detailing the nature of the weighting system.
Q. Now I show you Respondent’s Exhibit 13, which is a
study of selection tests prepared by the [idison Company.
Is that the validation study that you referred to that you
received? A. Yes, this is the one I received.
Q. I’d like to place you in this position, where you
were called upon to render a professional opinion regard-
ing the test at issue in this case, the instrument man test
battery. And, in order to render that professional opinion,
as to whether the test is a quote, good test or a valid test,
or job-related, what information would you need to have?
A. My major information, I’d say, in order of the im-
portance, I would want to see any studies that had been
done that are related to the instrument man battery. Any
studies dorx by the company. Any validation studies simi-
lar to the one that I did receive. And, second, in evaluating
whether the test good or not good, I’d want to look at the
test manual to learn what kind [90] of information, what
kind of validity had been developed by other researchers
and by the test publisher. And, I guess, as a third point,
I would be interested in learning how the test is adminis-
tered and whether it is being administered and what
standard, their answers, had been suggested by the pub-
lisher.
Q. In connection with formulating this opinion, would
you have any necessity to have the actual tests them-
selves? A. No, I would not ordinarily have a need for
the tests at all.
Q. Why is that? A, First of all, because one cannot
easily determine how a test item or how a test score will
relate to actual job performance without doing a statistical
validity study. I can’t, even though I know a great deal
about psychological tests, I cannot simply sit in my arm-
chair and decide that a particular test will not be predic-
tive of job effectiveness on a given job.
51
So I really do not gain information by looking at a test.
The other lines of evidence are much more helpful.
Q. We’ve discussed a couple of terms in testimony. I’d
like you to define them for us if you can. I utilized a term
‘‘face validity’’ in my earlier questioning. Can you tell us
what face validity is and how that relates to whether a
test is or is not valid? A, That term is used in quite a
few different ways. But primarily it seems to—a person
has a kind of stereotype in [91] his mind, perhaps, of
what a person needs to do in a job in order to be success-
ful. He can then look at a test and if some of the ques-
tions in there seem to fit that stereotype of what a person
should do in the job, one would say that test has face
validity. It would seem that answering these questions in
a certain way should fit the kind of notion or impression
of what it takes to be successful in a particular job.
So it’s a sort of a judgemental linkage between the test
and the job. But it’s subjective.
Q. What relevance does face validity have in analyzing
the question of whether a test is valid or not? A. It
doesn’t have any relevance if we speak of statistical valid-
ity. It has only relevance to the extent it might be useful
in a public relations sense. If persons who take a test
have a feeling that it does have some kind of face validity,
they’d be more accepting, perhaps, of the test.
Q. In terms of utilizing a particular test, we will refer
to the instrument man test battery. In order to determine
whether that test is measuring what it’s supposed to be
measuring, is face validity of any importance? A. Only
in the public relations sense. It would not be in the strict
sense of the way you worded the question.
Q. We’ve utilized this term validity study. You refer to
Respondent’s Exhibit 13 as being the study you were fur-
nished. Could you tell us what validity is and what it’s
seeking to [92] determine? A. The most critical part in
the carrying out of a validity study is to perform a sys-
52
tematic measure of job performance. In other words,
develop a criteria which can be used to evaluate or meas-
ure differences in the way people are doing the job. So one
would first do a very careful job analysis from which he
would develop a rating scale or a set of judgments that
would relate to performance on the job.
The number of persons who had been in that job might
then be evaluated according to the rating scale, the cri-
terion. They would also be asked to take the experimental
battery of tests. And then statistical procedures would be
used to compare the test scores with the criterion measure.
And, in effect, one would be‘developing an estimate of
low closely the test score will reflect the job performance
measure, what the hits are, in terms of the agreement be-
tween high test, where there is high job performance, and
to what extent there might be misses where high test
scores may relate the low job performance.
But statistical procedures can be used to give us quite
accurate estimates as to the degree of accuracy of a given
test by predicting job performance.
Q. So in layman terms, what I understand, a validation
study would be a study that you would undertake to then
determine whether the test battery was, in fact, predicting
what it was supposed to predict, i.e.: successful odds,
successful job [93] performance? A. That’s essentially
what the study would be.
Q. Is that the type of study that is reflected in Respond-
ent’s Exhibit 131 A. That is the nature of the study
there, yes.
Q. Before we leave this concept of fact validity, so that
I understand it as a layman, let’s assume we had a ques-
tion on the test that said something like do you prefer to
utilize a bedspread on your bed that has geometric pat-
terns, as opposed to a solid color bedspread? And the
person is supposed to indicate which answer.
53
Now, in the face of that question, I might throw up my
arms and say ‘‘what on earth has that go to do with in-
strument man work?’’ It might not have face validity for
me. On the other hand, if, in answering that questions, in
fact, it was an accurate predictor of who would and would
not be a good instrument man, would that be a good ques-
tion to use on an aptitude test? A. It would be useful as
a part of such a test,
Q. Now is that what we mean by face validity, someone
would look at that question and say I like the question or
I don’t like the question? A. Yes, just a general impres-
sion of whether that question fits that job without refer-
ring to the statistical relationship.
Q. In addition to the validity test you said you would
need [94] to look at, to reach a conclusion, you said you
would also—said you would want to look at the test man-
uals? Now what are those and where are they found? A.
Publishers of psychological tests will usually have a test
manual which, in effect, is the author’s statement about
how he came to put the test together, why he thought this
might be a useful measure to have. But more important,
it would include information about the consistency or re-
liability of the test. In other words, whether persons
would get the same general scores if they took the tests
many different times. That would be a reliability statement
about the test.
And then they will include information about the several
validity studies that may have been performed using the
test, indicating how the tests had proven accurate for
evaluating different kinds of job success, And, finally, a
manual will outline in some detail, exactly what the con-
ditions are of the test administration—how the directions
should be given, how the examinee would be made to feel at
ease, and how the scoring should take place. Usually quite
a careful statement will be given about scoring the test
and reporting the test scores.
54
Q. Are these test manuals part of the public domain?
That is could I go, for example, to Wayne State Univer-
sity, to their psychology department and receive a copy of
the test manual? A. You could typically either go to a
psychology department or, perhaps even a business library
in the city of Detroit, or [95] perhaps a library at a
university, and find such test manuals.
Q. These are in the public domain? Are they all open
to the public? I want to understand the tie-in between
validity and job relatedness. We’ve talked about those
concepts. In fact, we’ve run a validation study and the
study shows that test does have validity. Does that mean
that it is job-related? A, Yes.
Q. They are, in effect, one and the same, one and the
same term. Validity encompasses? A. I think job related
may be somewhat broader, but validity, but validity pre-
supposes—validity does, indeed, show the test is job re-
lated.
Q. Now you used one other term, I don’t know whether
it was predictability or reliability, or that if I take the test
today and I take the same test a year later and about
three years later, it would consistently show the same
thing. How is that measured, what do you need to deter-
mine that? A. The term for that is reliability. One of
the best ways of developing reliability is to learn whether
the test—whether a person’s score on different occasions
will be very close to the same score. In other words, if I
take the test today and get 120, and I take it six months
from now and get very nearly the same score, and that’s
repeated for several other persons and they all get about
the same score, that test would be said [96] to be highly
reliably consistent,
Q. With respect to these two tests we’re talking about,
the Minnesota form board test and the EPSAT test, with-
in the test manual, are there references to studies which
have established their reliability? A. Yes, there are.
4h)
Q. In addition to some of the documents we’ve intro-
duced, we’ve used this term validity and we find reference
to two terms, predictive validity and concurrent validity.
What do they mean by those two terms? A. Concurrent
validity is related to a study wherein the job performance
information and the test battery information are obtained
concurrently, at the same point in time. So this will usually
be a study in which job incumbents are tested. And then
test scores related to job performance.
Predictive validity would be the situation, usually,
where tests are administered to a group of persons who
then are put in a job, or experience a period of time in a
job situation, and only at a later point in time would job
performance information be gathered, So the correlation
is between the prior point in time when the testing occured
and the later point in time when the job relatedness was
measured.
Q. If you were called upon to pass judgment on a par-
ticular test battery, psychological test battery, to deter-
mine whether it had predictive or concurrent validity,
would it, in any way, [97] assist you in making that de-
termination, if you had the actual test results? A. No,
I couldn’t tell much from the test results.
Q. Based upon the information, Doctor, that you re-
ceived from the Detroit Edison Company, was that suf-
ficient information to enable you to form a professional
opinion as to whether or not we had a valid test in this
case? A. Yes, there was enough information.
Q. What was your conclusion in that regard?
Mr. Craramitaro: Objection, your honor. I’ve let all of
this general testimony in respect to what various terms
mean, but I do not believe that it’s relevant in respect
to the issues involved in this case, to know whether the
Doctor believes, today, that some tests that are involved
in our case, that were given some time ago, may or may
not have been valid. The issue before us is whether that
56
information is required to be submitted to the union in
processing the grievance so that it and not somebody else,
not the company itself, so that the collective bargaining
representative may make its determination as to whether
it thinks it’s valid.
Juper Barpan: Quite apart from all that, Mr. Hough-
ton, aren’t you getting into the very thing that we were
taking about this morning, and that is the merits of your
controversy with the union? Which is whether or not, in
one form or another, those tests are valid. I don’t want
to have to decide that—[98] that if I do, it might take
me much longer on this hearing than I presently am de-
termined to stay. The question you asked goes to the
heart of the merit—of the problem between you and the
union, but not at all to the merit of the problem before
me.
Mr. Hoventon: There had been some statements or
allegations on the record that, in one way or another, I
think tended to show, I think, the test was not valid. I
would agree with you that whether the test is valid or not
is not really the issue‘ before you. And I think that the
witness’s response to, could he, with the information pro-
vided, reached an intelligent conclusion in that regard, is
all that we need. We know that with that——
Jupce Barsan: You’ve had his answer.
Mr. Hoventon: Yes.
Jupcr Barsan: All right, then I’m going to sustain the
objection and you may go on. By the way, Doctor, be-
cause I didn’t retain it clearly in mind, what was the in-
formation you had that you said was enough? For you to
make a judgment.
THe Witness: I had the validity study.
Jupce Barsan: Mr. Houghton, which exhibit number is
this? Would you correlate for me?
57
Mr. Hoveuton: Exhibit 13.
Jupce Barsans Doctor said he had the validity study,
which exhibit is that?
[99] Mr. Hoveutron: Respondent’s Exhibit 13.
Jupce Barsan: Thirteen. Doctor, what else?
Tue Witness: That would be sufficient in and of itself.
And I also had information that gave me the background
of what had gone on thus far in the arbitration case. I
had the initial opinion by Professor Jones of the arbitra-
tion decision. I had the one letter, I’m not sure what ex-
hibit that is, that Mr. Houghton had written about the
information—about not releasing test information itself.
But attached to that letter was detail about how the scor-
ing was carried out—how the statistical weights were de-
rived. Those are the major elements of what I had.
Jupce Barsan: Was that General Counsel’s Exhibit 8,
that last?
Mr. Hoveuton: I think he’s referring to——
JupceE Barsan: Attached to eight is an explanation of
battery weight, loss or items on Minnesota paper form
board test and EPSAT test, is that what we’re talking
about?
Tue Witness: Yes.
Q. (By Mr. Houghton) As I understand your testimony,
Doctor, the only other items that you utilized in addition
to what you just explained to the judge—were the test
manuals? A. I obtained the test manuals from Mr. Ros-
ren later on and just looked through those very care-
y.
Q. And these are the documents, you explained, would
be available [100] in any library? A. Yes.
Q. Did you have the tests themselves? A. No, I didn’t.
58
Q. Did you have any need for the tests, themselves? A.
I didn’t feel I did.
Mr. Hoveuton: I have no further questions.
Jupce Barsan: General Counsel?
Mr. Craramitaro: May I have a few moments, your
honor?
Jupce Barsan: Yes.
Cross EXAMINATION
Q. (By Mr. Ciaramitaro) Doctor, a question about these
test manuals that you used, did those test manuals that
you looked at—referred to—do they refer to any particu-
lar job? For example, the job involved in this case, in-
strument man, being the Detroit Edison Company? A.
No, they did not. They refer to a variety of jobs in un-
named companies, where studies had been done.
Q. I may have missed some of this. But some of the
things that you go to in a validity study is a job analysis,
is that right? That’s one of the items? A. Yes.
Q. What would that be? Somebody would go down and
watch what a particular job classification does on a typi-
cal day, write it all down? [101] A. Well, quite fre-
quently. They would observe them and take notes, as you
say and that would be interviewed—interviews with a
number of different encumbents, sometimes they might
even ask encumbents to comment on ways that they might
screw up on the job or ways that they might be unusually
effective.
So there are a variety of things—kinds of information,
data, that would take place.
Q. Then, after that job analysis, that information gath-
59
ering is engaged in, somebody gets together to pick out
what are deemed to be the very key points on this job?
A. I don’t think they would tend to narrow it to such a
degree. They would try to include as much of the job as
possible.
Q. But from this study, the gathering of this informa-
tion, you try and set forth some sort of criteria, is that
right? A. That’s right, yes.
Q. And after you get—make these criteria, whoever
does it, then it’s fixed in his mind, do you try and formu-
late some sort of test that will draw out—that you think
will draw out these criteria, determine whether these cri-
teria will be met with a particular test. A. I’m not—you
first try to develop a rating scale made for job perform-
ance based on this criteria, so the supervisor can describe
incumbents on this various criteria. And then, [102] usu-
ally a psychologist or someone who had been working in
the area of personnel procedures, would choose some test
that would seem to be—that he might guess might be pre-
dictive of success.
Q. When you say choose some test, you are referring
to some pre-existing test, or would it be some test that
that person would himself make up? A. People go both
directions on that. Sometimes they do indeed make up
tests and try them out. More frequently they would use
tests that were already published.
Q. And these tests involve questions, is that right? A.
Yes.
Q. So there is a selection of questions. Isn’t it possible
that sometimes, in formulating a test, you will use some
parts of a pre-existing test and then make up others to
comply with a whole battery? A. That’s right.
Q. You never saw the test, the EPSAT or the Minne-
sota form board test that they used in this promotional
60
ease, did you? A. I saw the Minnesota form board many
years ago.
Q. I mean the one they gave in this test. I understand
that there are all kinds of different tests—Minnesota form
board tests, different EPSAT tests, depending upon what
use this is going to be put to. A. There’s only one form
to the EPSAT test.
[103] Q. There’s only one form? A. There’s quite a
few forms of the Minnesota test.
Q. Now, the Minnesota form board test that was used
in this promotional case, you didn’t see the actual one
that was used, is that right? A. No, I did not.
Q. Did you ever read any reports as to why the makers
of this particular test, that was used in this test, asked
the particular questions they did ask. Somebody thought
up a question, but did you ever see any reports as to why
the person thought up the question and put that question
in the battery of test that was given to the instrument
man in this case? A. The engineering physical science
aptitude test manual was based on a rough analysis of the
kinds of knowledge and aptitudes that are believed to be
important in engineering and physical clients. So they
try to sample these six areas that they thought were im-
portant.
Q. So you read studies as to the general category of
engineering and physical sciences. But you didn’t read
anything particularly related to instrument man B classi-
fication at the Monroe powerplant of the Detroit Edison
Company, is that right? A. Roskind has provided me
with that key.
Q. He covered that? A Yes.
Q. In that study, does it say why those questions were
used? [104] —were, in fact, used? <A. No.
Q. Earlier, in your direct testimony, you were asked to
prepare the term validity and job related. And then you
said that job related was a broader term, as I guess you
use the term, what do you mean it’s a broader term? How
61
is job related different than the way you’ve been using
validity? A. I think some things 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 re-
lated 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 prere-
quisites.
Q. Okay, now let me ask you this question. As you have
been using the term, is the meaning of validity included
within the meaning job related? 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.
Q. I’ll ask the reverse of that. Is the term job related
[105] included within the meaning of the term validity?
What I’m really driving at—I’m sorry, I’ll let you an-
swer the question. A. Well, a valid test in the sense
that we’ve been talking about it is—it’s a sufficient re-
quirement to establish job related. Not always a necessary
requirement, but sufficient.
Q. Isn’t it possible that something can be job related,
as we have been using that term, in the broad sense, but
not validity in the statistical sense, as you’ve been using
the term? A. That’s possible.
Q. Okay, it would also be—would the reverse be true,
that something may be valid or have validity in the sta-
tistical sense that you’ve been using the word, but not
job related? A. It would not be.
Q. That’s not possible? A. No.
Q. And when you made evaluations of the various in-
formation given to you, you were concerned with validity,
right? Yes.
62
Q. You were not really concerned with job relatedness,
is that right? A. Well, I was concerned with validity be-
cause it meant job related, so I was concerned with both.
But job relatedness is an indirect consequence of validity.
Q. In so far as validity is encompassed within the
broader term? [106] A. That’s right.
A. There are several different forms.
Q. Did you say EPSAT was all the same? A. It’s my
understanding they’re all the sam».
Q. You mean the same questions are always there? A.
Yes.
[108] Jupce Barsan: Doctor, I have certain problems.
One, the EPSAT test is that a single fixed test? Now I
understand that there are different series, but they don’t
change. For what range of activities are they used to de-
termine whether employees will perform satisfactorily? Is
there a fixed type of activity?
To go back with you, I assume you wouldn’t use it to
determine whether a man was going to be a good doctor,
or maybe you would.
THe Wirness: It might be okay.
Jupce Barsan: You mean it could be used for any ac-
tivity {109} —to determine whether a person would be a
good lawyer, a good doctor, a good engineer, a good in-
dustrial psychologist?
Tue Witness: I would not use it unless I had estab-
lished the validity for those particular purposes, but it
does, apparently include some vocabulary knowledge, gen-
eral science knowledge, comprehension of mechanical prin-
ciples, and it’s possible that if I did a study of, say, suc-
cessful graduation from medical school, that EPSAT
scores would show some modest relationship.
63
Jupce Barsan: Then if I understand you, and I’m be-
ginning to get some insight, maybe very slight, but some,
whether or not EPSAT or any similar test has validity
would have to be determined by practical testing on peo-
ple within the area we’re talking about. You want to de-
termine whether EPSAT was of any value with respect
to doctors, you would have to give it to doctors for a
while and see what happened?
Tue Witness: Yes, that’s right.
Jupce Barsan: Do we have any evidence, or do you
have any evidence that EPSAT was ever administered to
people doing the work or the kind of work involved in
this case?
Tue Witness: I don’t have any evidence of that sort.
I don’t remember the manual sufficiently well to be able
to say what other settings were cited in the mechanical
field.
Jupce Barsan: Now there was something else you said
that now becomes a little clearer to me. You said you had
never seen the EPSAT test and yet you were sufficiently
satisfied, [110] without seeing it, that it had validity in
the situation involved in this case.
I have to assume, unless you explain to me otherwise,
that you are then relying on somebody else’s evaluation,
who did see the test. Because I can’t conceive of a situa-
tion in which you can make a value judgment of the value
of the test, unless it has been seen—somebody has seen it.
Tue Wirness: I assume it was indeed used by Dr. Ros-
kind in the manner described in the validity study. And
the information in the validity study does give a correla-
tion, the coefficients between scores in the EPSAT and
criteria of performance in the instrument man job. So
that evidence—that correlation is sufficient evidence for
me. And my knowledge of the EPSAT is a published test.
64
It isn’t something that somebody put together on an old
piece of brown paper. It’s a reasonably well known and
established test.
JupcE Barsan: This leads me to my last question along
this line, because this is the inference I had drawn. And
if it’s a bad inference I would like you to tell me.
I had come to the conclusion that your conclusion as to
the validity of this test—it’s value—was based on some-
one else’s analysis. That is the validity analysis that was
submitted to you, is this correct?
Tue Witness: That’s correct.
Jupce Barsan: So that if the validity analysis sub-
mitted [111] to you was not, itself, valid, then your con-
clusion would be not valid. And this is not critical at all.
I am just exploring the steps that are involved here.
Now I want to ask you something else. I don’t know
exactly how to ask it and I am cautioning all counsel that
I’m going afield from anything that any of you have
asked, so I’m very sensitive to a quick objection.
Up to this point, in your testimony for respondent, and
quite properly so, has been directed to the validity of the
tests for the respondent, for the company’s purposes.
That is, as I understand it, they are interested in the test
because they want to know whether or not the prospective
employee is going to do well if he’s put in the job.
You’re shaking your head in the affirmative. That
means you agree so far. I have a slightly problem and
that is whether the employees, generally represented by
the union, are entitled to information about their working
conditions. Do I gather from your testimony, that you
have not, up to this point, been concerned with that factor
at all?
65
THe Wirness: I guess that’s what you gather—cor-
rectly I believe. I don’t think I would necessarily——
Jupce Barsan: I wouldn’t ask this question of anyone,
but you are an industrial psychologist and I assume you
have considered the effects of working conditions from the
employees’ standpoint.
[112] Tue Wrrness: I don’t understand. Do you mean
physical surroundings? Physical conditions?
Jupce Barsan: Let me give you this as an example, be-
cause I’ve had to deal with it. In a somewhat related
problem which dealt with piecework pay, and in which the
employer had done studies of the employees’ activities,
somewhat similar to that you describe—except yours is
on a much more refined plain. As a result of the employ-
er’s studies, the employer established a formula. And in
the particular situation in which I am thinking about, the
employees didn’t know what that pay formula was. It was
not revealed to them, and in this particular situation, the
employees were much agitated that they were being paid
on a formula they didn’t understand. Now that’s what I
mean by part of their working conditions.
And I—my question to you is—your testimony is not
addressed at all to the need of the employee to know.
Tue Witness: It would be my contention, I believe,
while I would generally be in support of anything that
could be done to explain to employees what the rules of
the game are. In other words, how do you go about look-
ing into another job? What do you have to do to get that
job? What is this test like in terms of just general nature
of it. So, in other words, rules and fair play that relates
to treating people humanely rather than in an exploita-
tive way. I would see not giving any formula, concerning
the pay formula as extremely self-defeating from the
[113] standpoint of any management that did that. Be-
cause one of the basic principles of motivation is that the
66
more people know how to get what they want, the better
off they might be and the more effort they might put
forth. So I don’t believe in secrecy as a policy, or any-
thing like that. I guess I did not give that a great deal
of attention.
_ _ >
Reprrect ExaMINAtIoNn
Q. (By Mr. Houghton) Doctor, so that I’m sure that I
understand some of your last responses, I’d like to try
and relate your answers to the issue we have before us
today.
For example, in making a determination as to the va-
lidity or appropriateness of this test, you would need to
know such things as scoring formula, would you not? A.
No. As to the what?
[114] Q. Seoring formula? A. You mean making a de-
cision about what?
The validity of the test itself. A. No.
Q. How the tests are scored? A. No, I wouldn’t need
to know that. As long as I knew that they were related
to job performance.
Q. Now, do you recall, Doctor, when I spoke to you
earlier and I asked you to assume you were retained by
a union and the union said ‘‘our boys have to take this
test battery and we’re concerned as to whether or not—
if they had access to the tests themselves, it would in any
way assist us in representing the people, if it would in
any way assist us in understanding the test. If it would
in any way assist us in determining whether the test is
valid or not’’.
Do you recall that? And what is your answer to that
question?
67
Mr. Cranamitaro: Objection, your honor, it calls for a
conclusion and the conclusion is not within the witness’s
expertise and it is irrelevant.
Mr. Hovcuton: I believe it is within the witness’s ex-
pertise. It’s certainly within this man’s expertise as to
whether or not having the actual tests would in any way
be a guide to further understanding the job or the way
in which the test is administered. Or whether the test is
a good test or [115] a bad test or a valid or an invalid
test.
Jupce Barsan: That wasn’t your question if I under-
stood it. I thought your question was whether or not hav-
ing this—having the test itself would be necessarily rele-
vant to the union’s ability or right to represent people.
Well then, I’ll sustain the objection because I think that
that’s not the question.
Mr. Hoveuton: I don’t believe that’s the question I
asked.
Jupce Barsan: I know. I’m saying that—strike all that.
Would you repeat your question?
My question is this, Doctor. In your opinion, would the
union’s having copies of these actual tests, in any way
assist the union or its experts in understanding whether
or not the test is, in fact, valid?
Me. Craramitano: That’s what I’m objecting to. That
question which calls for that opinion as to whether it would
be beneficial, not for him or for Edison, but beneficial to
the charging union and its agents. I don’t think that is an
opinion he could give.
Jupez Barsan: I’m having trouble. Read me the ques-
tion again.
(The pending question was read by the reporter.)
68
Jupce Baxsan: I will take the testimony as opinion
evidence from a person qualified.
THe Witness: My response then, would be that I would
not [116] regard the test as helpful to me in making that
judgment.
Jupce Barsan: But, Doctor, is that because you have
the analysis that somebody else made? I thought that
was your previous testimony.
THe Witness: No, if I were in the position of wanting
to know about the test I would ask for the statistical in-
formation rather than for the test itself. I would not rely
on my judgment simply from looking at the test.
Jupce Barsan: But you are, as I understand, discount-
ing the value of looking at the test at all. That was the
question.
Tue Wirvess: Right.
Q. (By Mr. Houghton) In other words, Doctor, so we
understand. Assume you were asked to pass upon the
validity of this test battery. Someone gives you all the
information and the Edison has already given you—and
then says ‘‘would you like the actual tests themselves’’.
As I understand your testimony, you would not need
those tests. A. That’s correct.
Q. Now let’s contrast that and if I may tell what may
be a bizarre example, would having those actual tests in
front of you—in order to formulate your opinion—be any
more valuable than, for example, having a copy of Life
magazine? A. That is somewhat bizarre, but I guess I
would not find that any more helpful.
{117] Q. In other words, it’s irrelevant to what you’re
trying to do, isn’t it? A. In terms of the kind of validity
that we’re talking about, that’s right, it’s irrelevant.
Q. Now I want to make sure we understand this. We’re
talking about psychological aptitude tests here. Now if,
4
for example, we had a test that was designed to measure
job knowledge. I take it your answer might be different?
A. Yes, it would be different.
Q. And in a job knowledge type of measuring test, you
most surely would need to see the text? A. Yes.
Q. Right. There was one other concept I wasn’t sure we
had fully in mind, and that’s this example. The concept,
rather, of a cutoff score. If, for example, someone were
to give you the actual tests, would you be able to look at
those tests and say these cutoff scores should be such and
such? A. No, I couldn’t.
Q. How do you determine what the cutoff score is? A.
You’d have to have a validity study and you’d need to
contrast successful performance on the job with less suc-
cessful performers and then compare the test scores that
they had received, in order to establish a cutoff point.
Q. And to determine that cutoff score, as I understand
it, you’d utilize a scatter plot of some sort? [118] A.
Yes.
Q. And then what would you do once you had that? A.
Well, I would generally try to maximize the number of
correct predictions of the test scores so that I would have
the cutting score set at a point where selecting persons
would result in the least loss of potentially good persons
and rejected persons—I should have said it just the other
way around. And selecting persons would result in a mini-
mum number of persons who failed. And rejected persons,
at the same time, would result in the minimal reject of
persons who might otherwise have been successful.
Q. Did I understand that you make that type of de-
cision without reference to the test itself? A. Yes.
Q. I don’t think we need to go through this validation
study in all it’s detail, but I wanted to make sure we
weren’t under any misunderstanding. You were asked a
question as to whether or not you knew if this test battery
had ever been used in connection with the instrument man
B battery job. As to whether it has or not and as to
70
whether it’s been correlated in the job, don’t you get that
information from the validity study? A. It tells me in
the validity study that this can be the case. I don’t have
an affidavit to justify that inference, but I certainly would
make the assumption that everything that is portrayed in
here is true.
[119] Q. Now assume, Doctor, you wanted to go the
next step behind this validity study. Do I understand you
that to take that step you might take this step, but you
might go to the supporting information that made up the
validity study? A. Yes. I’d like to see, perhaps, more
detail, tabulations, statistics and perhaps more of the cor-
relational data, but that would be my next step.
Q. Now the supporting document that would be behind
the validity study, that would be not—would include the
tests themselves? A. No.
Q. You were asked at one point during the cross exami-
nation, whether you would be at all concerned in finding
out why the particular questions that were used in the test
were used? Is it important to you in rendering or making
your validity study, why a particular question is used?
A. No, it isn’t.
Mr. Hoveuton: I believe that’s all I have.
Mr, Ciaramitaro: One or two questions, your honor.
Reprrect ExaMINATION
Q. (By Mr. Ciaramitaro) Doctor, if one were to give a
different battery of tests—that is different questions—for
the same purpose as involved in this case, promotion to
an instrument man classification. Would you expect that a
validity study would come out identical to the one that we
do have. Or [120] would you expect differences in the
results of the study? A. I would expect some differences?
71
Q. So the result of a validity study will depend on what
battery of what questions are asked, is that right? A.
That’s right.
Mr. Craramitaro: That’s all,
Mr. Lewis: No questions.
Jupce Barsan: Doctor, if you will, put up with me just
a little bit more. I am not at all sure whether there’s been
some change in position here or whether I’m not astute
enough to understand what’s going on—the latter is quite
possibly true.
I originally understood you to tell me that basically you
did not need to see the tests themselves because you were
relying on the evaluation of the tests made by someone
else. Is this correct?
Tue Wrrness: I would usually—well if I did not know
the evaluation made made by someone else, I would still
not find tests themselves useful in trying to evaluate
whether ihey were any good or not. The only kind of in-
formation that I would find helpful would be a statistical
evaluation, or knowledge that might be gained from the
test manual and, I guess—I’m not sure I would ever
really feel that I coul gain from examples of the actual
tests.
Jupce Barsan: I now understand you to say that what
you [121] are telling me is that -you’re more interested in
the results of the past use of the: tests than you are of the
contents of the tests?
Tue Witness: That’s right.
Jupcr Barsan: Do You—and are you also telling me—
because this is a question that was asked you—that
therefore, this is not exactly the question that was asked
you, but it’s a question that troubles me, Are you also
saying that therefore, the contents of the tests, could not
72
be of any value to a union representative in representing
his people who were concerned by the test?
Tuz Wrrness: I think I’m saying that, yes. I would not
see that as anything other than a kind of curiosity. I mean
satisfying of one’s own curiosity. I wouldn’t see it as a
way of evaluating the wisdom of the use of that test.
Jupce Barsan: Going back to another matter we dis-
cussed earlier. The need of the employees to know—that
does not weigh in to this situation at all, then, from your
point of view?
Tue Witness: Not in this instance.
Jupce Barsan: Would you explain why not in this in-
stance? F
Tue Witness: Well I don’t mean this Detroit Edison,
I mean not in this instance in terms of the whole picture
of psychological testing.
Juvce Barsan: Since I’m taking opinion testimony from
[122] you, here we have a group of people—leave Detroit
Edison out of it, although this is apparently the situation
here—we have a group of people who are seeking a promo-
tion which, apparently is guaranteed to them by the union
contract, who are complaining that they weren’t given
the promotion. And the union contends here that they can’t
find out the details why, one of the details being the tests
that were given to them.
And I am taking from your testimony that it is not—it
would not be necessary for the union to have this kind of
information to represent those people,
Tue Wirtvess: That’s correct. I would—I think the prob-
lem will be—well we couldn’t give the test items to poten-
tial examinees, because then the tests would quickly be-
come worthless.
Jupez Barsan: Is that the reason for your—I’d like to
have your reason.
73
Tue Wrirness: That would be the major reason. The
security of the test demands it not be part of the public
domain.
Tupce Barpan: That was the reason Mr. Houghton gave
quite early in the hearing—basically if the tests were
revealed, that its usefulness would be at an end. Is that
the basic reason for your answer to me?
THe Witness: That’s the basic reason. And a suppli-
mentary comment would be that being aware of the kinds
of items in the [123] tests, the general nature of the
tests’ framework would be useful. But this would not de-
pend upon giving the test itself—the actual content of the
test to anybody.
Jupce Barsan: Thank you very much. Any questions?
Mr. Craramitaro: No, your honor.
Mr. Hoventon: Just one.
FurTHER Repirect ExaMINATION
Q. (By Mr. Houghton) At your last answer you said it
might be helpful to have types of questions. Did you mean
helpful in satisfying this concept of curiosity? A. From
a public relations example,
Q. That’s what you were referring to? A. Yes.
Mr. Hovexton: That’s all I have.
Jupce Barsan: You’re excused. Thank you very much.
(Witness excused.)
Jupce Barsan: Off the record.
(Discussion off the record.)
Jupce Barsan: Back on the record.
Mr. Hovexton: I call Dr. Roskind.
74
DR. WILLIAM L. ROSKIND
a witness called by and on behalf of the Respondent, being
first duly sworn, was examined and testified, as follows:
Direct ExaMINATION
Jupce Barsan: Please be seated.
[124] Q. (By Mr. Houghton) Dr. Roskind, your full
name, for the record? A. William L. Roskind.
Q. Where do you reside? A. 27310 Aberdeen, Sough-
field, Michigan.
Q. Are you employed? A, I’m employed by the Detroit
Edison Company.
Q. What is your position with the company? A. I am
the director of industrial psychology.
Q. How long have you held that position? A. Since
September the third of this year.
Q. Prior to the September third, what was your position
with the company? A. I was the acting director for three
weeks. Prior to that I was the administrator of psycholog-
ical services.
Q. Back at the time the tests were given—that are in-
volved in this case—what was your position with the de-
partment? A. I was working with this department as a
research psychologist.
Q. Did you yourself personally take part in any way in
the administration of this particular test battery? A. I
was in on some of the preliminary meetings relative to the
development of this test battery and worked on some of the
research and suggested the criterion rating scale that was
used in this study, And helped with some of the statistical
analysis.
(125] Q. Is that the statistical analysis that was embodied
in the validity study? A. That’s correct.
Q. Do you yourself have knowledge as to the way in
which this test is administered, how it’s scored and that
sort of detail? A. Yes, I do.
75
Q. And do people work for you who have access to the
actual company records involving the administration of
this test? A, Yes, the individuals who administer this
test, work with the records, report to me.
Q. All right, now I’d like to look back—and remind you
Dr. Roskind, ask you, first of all, when were psychological
aptitude tests first used in the company. When were they
first used. A. They go back probably some forty years
to, I think, 1932, when one of the first psychological apti-
tude batteries was used in the selection of men from one
of the trades jobs.
Q. Now back in the 1930’s, was that prior to the time
the union represented employees of the company? A. I
don’t know what time the union began its representation
of the employees.
Q. As a note here, we’ll refer the arbitrators to the col-
lective bargaining agreement which sets forth the certifi-
eation dates of the various units and they began, I be-
lieve, in 1941.
Jupee Barsan: I think you were referring to me as the
[126] arbitrator. I am not. Go ahead, I’m just a——
Mr. Hovexnton: It’s getting late in the day.
Q. (By Mr. Houghton) Looking at the particular job
we're involved with today, instrument man work, When
were psychological tests first utilized for entrance into
that job?
Mr. Craramitaro: Objection, your honor. I’ve left sev-
eral questions along this line. I’m not sure—I doubt and
I believe it’s irrelevant as to when psychological testing
began in general or in specific in respect to this case.
When it began is irrelevant.
Jupce Barpan: Was your last question concerning in-
strument men?
Mr. Hoveuton: Yes, this particular job, this work.
76
Jupce Barsan: Objection is overruled,
Tue Wrrwess: As a part of the study on the selection of
powerplant operators, it became apparent that many of
the operators were moving into the job of instrument
man. And so at the same time that that study was investi-
gated back in 1958, this test battery was developed—
instrument test battery was developed in use for the
selection of instrument men.
Q. And it’s been used since that date, to this time?
A. That’s correct.
Q. You’ve stated that the actual tests themselves, in
this case, are kept in confidence. I’d like for you to ex-
plain to me, for example, how these tests are utilized by
the Edison [127] Company. For example, if you pro-
posed to give this test battery to certain of these prospec-
tive applicants, what measures are taken to keep the tests
confidential? How do you go about keeping copies of the
tests and giving them to the people to be administered?
A, When individuals are scheduled to take the tests a
sufficient number of copies of the tests are taken out of a
locked file and taken into the testing room where the appli-
cants are already seated and standardized instructions are
given to the applicants or employees as to what is ex-
pected of them during that testing situation.
The instructions for a specific test and samples are
given to them so they know what kinds of problems
they’re going to be working. While they’re taking the
tests, tests are passed out to each of the individuals and
as soon as the test is over with, as soon as the standard
time is up, the tests are collected and taken out of the
testing room and refiled in a locked drawer.
So that—and there’s an accounting system whereby we
keep track of the number of tests we take into the room
and we take out. A test is collected from each person.
77
Q. What would happen, for example, if I had come to
you and said I’m a supervisor of the instrument men and
I’d like to see what this test is you’re giving to my men.
Can I have a copy. [128] A. Well, I’d ask you why you
wanted to take a look at the test and what was it you
were interested in and discuss the test and the aptitude
that the test measures, with you, to help you understand
it. But, no, I would not show you a copy of the test.
Q. Are these tests disseminated to management? A.
No, management of the company does not have access to
the tests.
Q. Are you familiar, Dr. Roskind—and by the way, di-
gressing for a moment, I don’t think I can establish this,
Do you have a doctorate in the field of Psychology? A.
Yes, I do.
Q. Are you familiar with the ethical standards of psy-
chologists? A. Yes, I am.
Q. Would you tell me where they come from? Who they
are applied to? A. The ethical standards were created
by the committee working for the American Psychological
Association in an attempt to protect the general populace
for whom psychologists work and also to protect the
American Psychological Association of Practising Psy-
chologists from unethical behavior.
Q. Now are these standards binding on all psycholo-
gists? A, Yes, they are.
Q. Are they the same throughout the country? A. Yes.
[129] Q. Within the Detroit Edison Company, Doctor,
were you the one who made the decision that these par-
ticular tests should not be given to the union? A. I’m
the one that’s responsible for that decision.
Q. And will you tell us why you made that decision in
this case? A. From one standpoint we have the ethical
standards which forbid the dissemination of psychological
aptitude tests to laymen or to people who are not profes-
sionally qualified to use the tests. And second of all, we
have the problem, the very, very practical problem of test
78
security to the extent that if the tests were disseminated
and if they became general knowledge, employees who
were interested in bidding on the job of the—the instru-
ment man job, then it would destroy the validity of our
selection process,
And, if we weren’t aware of it, we would be selecting
people for that job, who stood, possibly very little chance
of being successful on that job. And, furthermore, it would
be inappropriate in terms of all the other people who
were using those tests. Those tests are used throughout
the country and it would be unfair to anyone who’s gone
through the trouble of validating a test battery including
those tests.
Q. To clear up one point, this EPSAT test that we re-
fer to, is there only one form of the EPSAT test? A.
There is only one form of the EPSAT test. It does not
[130] have any parallel forms.
Q. What about the Minnesota form board test? A. The
Minnesota form board has several parallel forms, equiva-
lent copies of the tests which serve in each other’s place,
but do not have identical items on each test.
Q. If you validate, for example, the test sample was
vaiidated in this case. Do I understand you to say you
could then substitute some other form of the Minnesota
form board test and give it to Edison employees for other
evaluations? A. Not exactly. You’d have to do some ad-
ditional research to make sure it was operating as to
parallel form. It would generally accepted as a parallel
test, but it is not exactly the same. You’d have to re-nor-
malize the data. We establish norms, not additional re-
search.
Q. With respect to the Edison, you use only one form
of the form board test? A, That’s correct. Every person
that takes that test for that job takes that one form of
the test.
79
Q. To make sure we understand this concept of validity,
supposing you have a job—and I'll call it a crane oper-
ator—and you read some articles in the field of say, a
perfectly wonderful test that’s been developed to deter-
mine whether people are going to be good crane operators,
do I understand that even though you would have that
literature, before you would actually give that test to Edi-
son people, it would be necessary to [131] validate that
test with respect to the particular job? A. That’s our
policy within the company. We do not accept validation
studies done by other organizations, for use in our own
company. Because to a large extent, job titles will carry
the same title from company to company, but they may, in
fact, have critical incidents, critical facts that will be dif-
ferent. And without a careful analysis of the job and a
statistical analysis to see whether, in fact, that particular
test will predict successful performance on that job, it
would be inappropriate to use that test as far as our
people——
Q. All right, now let’s look at this validation study that
the Edison Company performed with respect to this test
battery and I believe it’s Respondent’s Exhibit 13.
But let me ask you this question first. In preparing the
validation study, someone sits down and says all right
I’ve got to determine whether this test battery is valid
with respect to this job.
Would it in any way be necessary for that person to
utilize the actual tests themselves? A. No, it would not.
Q. What would he do? A. The individual would look
at the validation study itself to see the relationship.
Q. Excuse me, I’m going a step further. I’m saying
there [132] no validation study. Someone is now going
to sit down and put together a validation study to validate
the test in the first instance. In that situation, would he,
in any way, have to utilize the actual tests themselves?
A. No, that wouldn’t serve any purpose. It would be more
appropriate to look at the various test manuals and to go
80
through the literature and look at other research that’s
been done. Assuming that you were about to develop a
test battery, you would have analyzed the job. You 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.
You would then go to the catalogues of tests by research
and so on, and look for tests that would measure the
aptitudes that you were interested in, the aptitude that
you hypothesize is relevant to that job.
Q. So we understand, assume again I have this crane
operator job, assume hypothetically there are a hundred
different aptitnde tests available? I suppose I could start
with the first one and go through all one hundred and
perform validation studies for each of the tests and then
pick the one the most appropriate and suited to my pur-
poses. A. That would be very inefficient way of doing it,
going through each one, one at a time.
Q. In layman’s terms, do I understand you to say in
determining which of those tests you want to validate, you
use the [133] test manuals and attempt to isolate those
tests which you think will be predictive. A. That’s cor-
rect, yes.
Q. And then, before you actually decide to use them,
you do in fact run a validation study? A. You run a
complete research program to determine in fact whether
those tests will predict performance on the job, before
you actually start using those tests for selection.
Q. And, again, in running a complete research form,
the complete research task, would you have any need to
actually use tests themselves? A. You would use the test
in terms of administering to people but it would not be
necessary for you to sit down and look at copies of the
tests other than to satisfy your curiority.
Jupee Barsan: The point is, as I understand it, you
validate by giving the test to people and checking those
people statistically, or am I wrong?
81
Tue Wrrwess: If I may rephrase that, I’d like to ex-
plain to you what it is that we do. If we have——
Jupee Barsan: That’s what counsel seems to be asking.
Tue Witness: If we have a number of crane operators
working for us at the present time and we want to develop
a selection battery for selecting future crane operators,
we would analyze the job of crane operator and we would
develop a rating scale and evaluation to find out who it is
that can do [134] do the job well, who can do it on an
average level of performance and who is actually doing
the job so poorly that if we could, we would prefer not to
select any additional men like those who are performing
poorly, Having that rating scale and being able to desig-
nate which are successful crane operators, averaging poor
operators, based on actual performance on the job, we
would ask that group of men to come in and take this
battery of four or five or six aptitude tests that we hypo-
thesize will, in fact predict their performance.
We might administer four or five tests and, in the re-
search discover that really only two or three of those
tests will predict performance. And we made a bad guess
on one or two or three or those tests.
Jupce Barsan: You would give all of the tests to all of
the men?
Tue Witness: All the tests. Say if we picked out six
tests, we would hypothesize would, in fact, produce per-
formance. And in running one of these validity studies as
is described in this exhibit number R-13, we would deter-
mine which tests actually do predict performance. Which
ones will, in fact, predict the high performance individ-
uals and which the low performance.
And then, those tests, but only those three that in fact
did predict performance, would be used in the fut :re.
And after a few years a follow-up study would be done to
82
see if the new [135] people would have been selected
using that test battery and are in fact performaing the
job successfully.
Jupce Barsan: Originally those tests on which the poor
performance did poorly and tests on which the good per-
formers did well, would be your predictive tests, Is that
a correct point?
Tue Witness: Those tests on which the poor performers
did poorly and the high performers did well, would be the
tests that we would select for use in selecting batteries for
the future.
Jupce Barsan: Thank you. Mr. Houghton, I’m very
sorry to have interrupted, but I wanted to get some detail.
Mr. Hoventon: That’s entirely all right.
Q. (By Mr. Houghton) Mr. Roskind, so I understand
this, again, from a layman’s standpoint, If you were to
tinker with test Latteries and try and make a test battery
more predictive and you find, for example, one test was
actually exercising a negative function, that it was counter
productive and if it was depressing other tests that might
be successful predictors, you then eliminate the bad test,
is that right? A. That’s correct.
Q. Is this sort of thing what’s encompassed in making
the validation study, in determining what is and is not an
appropriate test battery? A. Generally yes.
[136] (A document was marked Respondent’s Exhibit
No. 20 for identification. )
Q. I hand you what has been marked proposed Em-
ployer’s Exhibit No. 20, and ask you if you can identify
that? A, This is a copy of the ethical standards of psy-
chologists.
Q. And are these the standards that are in effect and
have been in effect at all times pertinent to this case?
A. That’s correct.
83
Q. And do these standards contain the ethical standards
you referred to earlier, regarding the release of testing
information? A. Yes, they do.
Q. Which standards are those, by number? A. In terms
of the principle of test security, that’s principle number
13 of the ethical standards,
Q. And what about test interpretation, what principle
is that in? A. That’s principle number 14.
[137] Q. (By Mr. Houghton) Dr. Roskind, with respect
to the results of tests, when employees take tests and they
have the results recorded in the company records, what
efforts, if any, are made to keep those results confidential?
A. Those records are locked in a locked file cabinet in our
office and only several individuals who have a need to
know have access to those records. The scores are consid-
ered highly confidential and are not discussed with anyone
that does not have specific need to know. And that’s a very
limited group of [138] individuals.
Q. Who would be encompassed in that group? A. The
people that work directly for me have access to the actual
scores in terms of doing some of our research work. Two,
the people who administer the tests, and one or two of the
psychologists that work with us. But no-one outside of our
group has access to the actual test scores.
No-one other than professional psychologists.
Q. All right, if I were a supervisor, a member of man-
agement and I came to you and I said I want to see how
my people scored, give me their test scores, what would
you require? A. It’s not a question of requiring any-
thing. You would not have access to the actual scores by
names of employees, Regardless of whatever reason you
gave me. The only people outside of our group that get
any information at all are the interviewers, who are par-
tially responsible for making selection decisions. And all
they get is a general evaluation of the person’s perform-
ance.
84
In most cases, as we’re talking in this test battery,
either the individual has met the standard for the test
battery or the individual has not met the test standard.
But in terms of the numerical score or the raw scores
or the scores on the individual tests, the test battery in
parts, that information is not given.
Q. What if I came to you and I had a signed release by
three [139] of my employees, giving you written author-
ity to give me the actual test scores, what would happen?
A. I don’t think I would accept that either, Mr. Hough-
ton, if the employees came to me and told me that they
had some reason why they wanted you to have their test
scores and if they signed a release that I had prepared
for them, then I would, in fact, give you their test scores
if that’s what they wanted.
But outside a signed release I could not do it, I would
be opening myself up for a suit if the test results were
misused. And it would be against the ethical standards of
psychologists.
We found that it’s actually destructive in a company.
When this occurred many, many years ago, before this
practice was put into effect, several individuals whose test
scores were known to themselves and other individuals
that worked with them, were harrassed so much and
called stupid and dummy and so on, to the point where
they actually left the situation. They quit their job with
the company because of harrassment.
In order to protect employees from that type of har-
rassment, we will not give the test scores to anyone at all
without a release of that individual, if the person has a
need to know.
Q. I’d like to turn to another area, Dr. Roskind, and
that has to do with the administration of the tests them-
selves. Are the employees given any initial instructions or
85
reference [140] guides when they sit down and take
these tests? A. When an employee sits down or an appli-
cant sits down and takes the tests, they are given ground
rules as to how we operate. They are told approximately
how long the test battery is going to take, the kind of
tests they’ll be taking. They are asked whether they have
any questions or problems, or where they are parking
their car. We don’t want people starting a test under any
unusual or additional stress.
And then they are told that the tests—-how the tests
will be used, how the results will be used and that is that
the test results will be compared to other individuals who
already took the test in the company, and compared to
their performance—that they may be used in an additional
selection process. And most important of all, that their
test results will be kept confidential by our group. And
that those test scores will not be released to anyone. Only
an interpretation of the overall performance.
(A document was marked Respondent’s Exhibit
No. 21 for identification.)
Q. Dr. Roskind, I hand you what is marked Respond-
ent’s Exhibit No. 21 for identification, and ask you if you
can identify that for us? A. This is our copy of the in-
troduction to testing that is read to all applicants when
they come in and sit down, and employees, when they
come in and sit down to take the test, And, the point
[141] that I mentioned earlier, the statement that the
test scores are confidential, relates to this particular
principle where we are able to give people who have need
to know an interpretation of the overall performance, but
not the numerical score. That’s what the applicants or
employees are told.
86
Q. And are these the instructions that are told to the
applicants taking the instrument man test battery? A.
Yes, they were.
Mr. Hoveuton: We would offer the exhibit.
Mr. Cranamrraro: No objection.
Jupce Barsan: Mr. Lewis, any objection?
Mr. Lewis: I don’t think so. Is this the same one that
was put in at the other?
Mr, Hoveuton: Yes.
Mr. Lewis: No objection.
Jupce Barsan: Respondent’s 21 is received.
(The document heretofore marked as Respondent’s
Exhibit No. 21 for identification was thereupon
received in evidence.)
Q. (By Mr. Houghton) All right now, in terms, Dr. Ros-
kind, of scoring, let’s just assume a group of people sit
down and take the test battery, what types of answers are
they putting down on paper and how are these answers
scored? A. After looking at the question in the test
battery, or the tests themselves, they read one of anywhere
from two choices, [142] to one of the possibly five choices,
And they select the choice they think is most appropriate
for the question. Then they go to a separate answer sheet
and mark that answer on the answer on the answer sheet
with a pencil by marking an area between some dotted
lines. That indicates the answer to that question.
Q. And then when one of these answer sheets is filled
out and turned into the company, how do you go about
checking or scoring such an answer sheet? A. A key de-
signed for that test, produced by the manufacturer is
placed over the answer sheet and the number of correct
responses is counted. Prior to that the answer sheet is
screened to see whether individuals have possibly marked
87
more than one answer to a given item. And in some cases
an additional key is placed over the answer sheet to de-
termine the number of wrong answers.
Q. Is there any subjectivity involved in the scoring
operation? A, It would not matter who did the scoring
of the answers. If they were done properly different indi-
viduals would arrive at the same scores. So we call that
an objective scoring procedure rather than a subjective
scoring procedure, when different people might evaluate
it differently.
Q. Suppose I’m scoring this test and I find an employee
has put down marks in two boxes for the same question.
Am I supposed to try and decide which box he intended
to blacken or how do you handle that? [143] A. The in-
dividuals that are taking the test are informed ahead of
time that if they, in fact, mark two responses to one item
that they receove no credit for that item. It’s counted as
wrong.
Q. And have you, in the past, Doctor, explained this
scoring and its principles involved, to people? A, Yes, I
have.
(A document was marked Respondent’s Exhibit
No. 22 for identification.)
Q. Dr. Roskind, I hand you what has been marked Re-
spondent’s Exhibit No. 22 and ask you if you can identify
this for use? A. This is a copy of the answer sheet for
the engineering and physical science test. We’ve been re-
ferring to it today as the EPSAT test.
Q. And is that the sheet upon which the responses
would be recorded? A. That’s correct.
. Q. And that is an example of the actual scciing sheet
for the test given in this case? A. This is an answer
sheet that would be used, yes.
Mr. Hoventon: We would offer it.
88
Mr. Craramitano: No objection, your honor.
Mr. Lewis: No objection.
Jupce Barsan: Respondent’s 22 is received.
(The document heretofore marked as Respondent’s
Exhibit No. 22 for identification was thereupon
received in evidence.)
[144] (A document was marked Respondent’s
Exhibit No. 23 for identification.)
Q. Dr. Roskind, I hand you wat has been marked as
proposed Respondent’s Exhibit No. 23 and ask you if you
can identify that for us? A. This is another answer sheet
that is used with the revised Minnesota paper form board
test. And it is an actual answer sheet that’s used in prac-
tice.
Q. Now you say used in practice. You mean this would
be an answer sheet that would be actually used when the
test is given? A. That’s correct.
Mr. Hoveuton. We would offer this exhibit.
Mr. Craramitaro: No objection, your honor.
Mr. Lewis: No objection.
Jupce Barsan: Respondent’s 23 is received.
(The document heretofore marked as Respondent’s
Exhibit No. 23 for identification was thereupon
received in evidence.)
(A document was marked as Respondent’s
Exhibit No. 24 for identification.)
Q. Dr. Roskind, I hand you proposed Respondent’s
Exhibit No. 24 and ask you if you can identify that?
A. This is a copy of an answer key for the engineering
89
and physical science test that I had prepared specially for
this hearing. It is a replica of a key—in that it is not the
[145] actual answer sheet that is used, but it is a copy
of what the key would look like.
Q. And how is that key used by the company in scoring
an answer sheet? Could you show us please? A. I don’t
have an answer sheet with me. The answer sheet is
placed—the key is placed over the answer sheet. It can
be lined up and then it’s a simple process of looking
through the key to the answer sheet to see which answers
have been left blank in order to obtain a count of the
correct responses to the items of the test.
Q. And is a similar type key used for scoring the paper
form board test? A. Yes it is.
[146] Cross Examination
Q. (By Mr. Ciaramitaro) Dr. Roskind, you’ve explained
how the cover sheet is set over the test sheet or test paper.
These are checked manually, I understand, by a checker?
A. Yes.
Q. A human being? A. Yes, normally twice.
Q. Pardonme? A. Normally twice.
Q. Does the same person check it twice or does it go to
somebody else to check? A. Normally it’s checked by the
same person.
Q. And that same person checks it twice? A. That’s
correct.
Q. And the result of his checking is recorded where?
A. On a test record card, on the answer sheet itself.
Q. So the checker will put down how many right an-
swers? A. I’m sorry. It is reported on the answer sheet
itself and then a clerk—your question was where is it
recorded?
90
Q. Right. A. It is reported on the answer sheet itself.
Q. Now looking at this example where the cover sheet is
superimposed over the answer sheet? Check me, whether
I’m right or wrong—on the examples that you have? Well,
as 1 look at it, I can only see one possible for each ques-
tion. If I look [147-A] through that hole I can only see
one double-doited line. Is that right? A. Yes.
Q. Now, you indicated before, maybe sometimes a per-
son may give two answers to the same question. A. Yes,
sir.
Q. How is the checker going to see that by superimpos-
ing the cover sheet over the answer sheet? A. Okay, I
also stated that prior to placing the key on the answer
sheet, the answer sheet is looked at to see whether or not
an individual las, in fact, recorded two responses to a
single item.
Q. Okay, so the checker will do that first before he puts
the cover sheet over it? A. That’s correct.
Q. Dr. Roskind, after the checker checks it the two
times, is there ever any further review as to whether the
checker made any mistakes? A. There are, from time to
time, additional reviews, it is not a systematic procedure
as such. If a question comes up the answer sheets are nor-
mally held for a year. And if any question comes up they
can be reviewed.
Q. Has it ever happened, in your experience, where
tests have been reviewed in this fashion? A. Yes.
[147-B] Q. Have mistakes ever been discovered? A.
From time to time, yes. Yes, I guess, yes. We have to
discriminate. First we make a count of one wrong or two
wrong.
® eo e
Q. Now tke custodians of the results of the papers
themselves, is it the psychology department? A. That’s
right.
91
Q. And then at the employment—someone, some em-
ployment department personnel wanted to know what the
scores were, they [148] would have to go to the psychology
department and request them, is that right? A. That’s
right.
Q. Assuming that person had been determined to have
access, the psychology department would then give that
information, is that right? A. The information would be
given in terms of whether or not the person met the stand-
ards for that test battery or not, not the test scores.
Q. So even your own employment department isn’t told
the individual’s test scores? A. That’s right.
Q. And what if—and if they were to ask for a compari-
son between one individual and another individual. What—
would you just say one got higher than the other? Or
would you not say at all? A. Well we’ve had this conver-
sation with them in the past and they understand that once
we set a cutting score, people either meet the standard or
fail to meet the standard. And, in which case, they don’t
ask us which of these two people got the highest score.
They don’t feel that our tests are such that it’s appro-
priate to make that kind of comparison. If two individ-
uals have the minimum necessary qualifications, then, in
fact, we consider them both qualified. And the recom-
mendation is such that these people are acceptable accord-
ing to the test battery. [149] And so we do not make those
comparisons for the empoyment department.
Q. So it’s just acceptable and not acceptable? A. The
term we use is acceptable and not recommended.
Q. So if an employee came up and said I can’t believe
that guy got a higher score than I did, you’re not going
to tell him both scores, you’re just going say he got
acceptable and you got not recommended. Is that right?
A. Well, with the employee came in to see me I would sit
down and go over that employee and give him a much
more detailed analysis of his test performance and go into
actual scores if that would be helpful, and show him where
92
his scores stand, compared to the norm group that we
have. Whether he is high or low, relative to all of the
employees who have taken that test. But not relative to
any individual that has taken that test.
Q. Not only would you handle an employee that way,
the same would go for the union, is that right, an employee
representative. You wouldn’t even go into some of that
depth with an employee representative. Is that right?
A. With the employee representative?
Q. Yes, for example, like Mr. Lewis? A. Not unless an
employee had authorized me to do that.
Q. You referred to an experience same time ago—I
don’t know—you had a problem with people being har-
rassed because their scores became known. Is that right?
f150] A. That’s correct.
Q. Now what group of people were being harrassed, the
people who flunked the test? A. Yes—by other people
who had taken the test.
Q. These other people who harrassed them were those
the people who passed the test? A. Yes.
Q. So it was those who passed who were harrassing
those that flunked, is that right? A. Well I’m not really
that familiar with it. I shouldn’t really say that. That was
my understanding, but I’m not really sure of that detail.
I think I can safely say this, it was someone who got a
higher score than someone else, harrassing the one with
the lowest score.
Q. At least that? Now you’ve indicated that the battery
of tests that were used in the instrument man—that bat-
tery of tests, had that same battery had been used for
how long? A. This battery was developed in 1958 and has
been used continuously since then. There have been some
modifications to the battery. Modifications took place in
1970.
Q. When you say a modification, a change in a question?
A. No. A change in—not the scoring procedure, but the
arrival at the acceptable, the cutoff point.
93
Q. Okay, but the same questions have been used since
1958? A. In one of the tests, one of the entire tests—
there were [151] three tests used in the test battery prior
to 1970 and two tests used after that time. A research
study was done at that time that showed that the third
test was not making a significant enough contribution to
warrant continuing its use.
Q. Okay, of those two tests that you continued over——
A. Yes.
Q. ——after 1970, did those two tests continue to con-
tain the exact same questions as had been used from 1958
to 1970? <A. To 1974.
Q. So there were no change in questions? A. That’s
correct.
Q. At least in those tests? A. That’s correct.
Q. And the third one was dropped altogether? A.
That’s correct.
Q. And to your knowledge, Dr. Roskind, has this been
the first time that the union has requested these tests?
A. This particular case is the first time that the unioa has
requested tests.
Q. Instrument man B tests? A. Yes, relative to PMO-
123.
Q. You mean to say they’ve asked for the instrument
man B battery of tests before? In any other context?
A. I’m sorry. I just wasn’t sure what your question was.
In other words, not relevant to our case today at this point
in [152] time. But since the beginning of the arbitration
case of PMO-123, after the third step grievance, when Mr.
Lewis became involved.
Q. But I’m saying this is the first time the battery of
tests used in the instrument B situation. The battery has
been in use since 1958. This is the first time that such
batteries have been requested by the union? A. What do
you mean
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