Amicus Brief — Detroit Edison Co. v. National Labor Relations Board

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IN THE JUN 9 1978

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Supreme Court of the Anited, States... JR., CLERK

OCTOBER TERM, 1977

No. 77-968

DETROIT EDISON COMPANY,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

BRIEF AMICUS CURIAE

SUBMITTED BY THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

IN SUPPORT OF PETITIONER’S

BRIEF

WALTER B. CONNOLLY, JR.

WILLIAM J. RODGERS

STEVEN C. KAHN

Pepper, Hamilton & Scheetz

1776 F Street, N.W.

Suite 200

Washington, D.C. 20006

Attorneys for Amicus

STEPHEN A. BOKAT

National Chamber

Litigation Center, Inc.

1615 H Street, N.W.

Washington, D.C. 20062

Of Counsel

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE 2

QUESTION PRESENTED 2

STATEMENT OF FACTS 2

PROCEEDINGS BELOW 6

SUMMARY OF ARGUMENT 7

ARGUMENT 8

The Board Erroneously Concluded That The

Company’s Failure To Supply The Requested Test

Materials Violated Section 8(a) (5) And (1) Of

The Act 8

A. Section 8(a) (5) Of The Act Does Not

Require Disclosure Of Information That Is

Not Even “Probably Relevant” To The

Union’s Administration Of The Contract 8

B. Disclosure Of The Requested Information—

Even If “Probably” Relevant Within The

Purview of Acme — Was Not Warranted

Under NLRB vy. Truitt 10

1. Introduction 10

2. The Board’s Restriction Does Not Pro-

tect The Company’s Interest In Its Test-

ing Program 12

3. The Board And Sixth Circuit Disre-

garded The Interests Of The Industrial

Psychologists And Examinees 16

C. The Board’s Disclosure Requirement,

Page

Adopted By The Sixth Circuit, Defeats

The Company’s Right Under Title VII Of

The Civil Rights Act Of 1964 To Utilize

Validated Aptitude Tests 19

CONCLUSION 23

TABLE OF CITATIONS

Cases:

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) . | oka 22

Alemite Mfg. Corp. v. Staff,

42 F.2d 832 (2d Cir. 1930) 14

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) | SA 19

Alleluia Cushion Co., Inc.,

221 NLRB 999 (1975) .. ann 419

Aluminum Ore

39 NLRB 1286 (1942) | | 18

Amalgamated Utility Wkrs. v. Consolidated

Edison Co., 309 U.S. 261 (1940) | 13

Chase Nat. Bank v. Norwalk,

29 U.S. 431 (1934) 13

Electrical Mfg. Co.,

173 NLRB 878 (1968) _. ms 18

Emeryville Research Center, Shell Div. Co. v. NLRB,

441 F.2d 880 (9th Cir. 1971) 2.0. 8

Page

Emporium Capwell Co. v. Western Addition

Commun. Org., 420 U.S. 50 (1975) 19

Getman v. NLRB

450 F.2d 670 (D.C. Cir. 1971) 18

Griggs v. Duke Power Co.,

401 U.S. 424 (1971) 19, 22

Harvey v. Bettis,

35 F.2d 349 (9th Cir. 1929) 14

Hughes Aircraft Co. v. Schlesinger,

384 F. Supp. 292 (C.D. Cal. 1974) 17

International Telephone and Telegraph, Federal

Division, 22-CA-499, 46 LRRM 1387 (1960) 22

Kirkland v. Department of Correctional Services,

520 F.2d 420 (2d Cir. 1975) 12

Kroger Co. v. NLRB,

399 F.2d 455 (6th Cir. 1968) 8, 11

McCulloch Corporation,

132 NLRB 201 (1961) 18

Metropolitan Life Ins. Co. v. Usery,

426 F. Supp. 150 (D.D.C. 1976) 17

Myart v. Motorola, Inc.,

110 Cong. Rec. 5662-64 (Mar. 19, 1964) 21

NLRB v. Acme Industrial Company,

385 U.S. 432 (1967) 8, 11

NLRB v. Insurance Agents’ Int’] Union,

361 U.S. 477 (1960)... , 11

iV

NLRB v. Ochoa Fertilizer Corp.,

368 U.S. 318 (1961) 9

NLRB v. Truitt Mfg. Co.,

351 U.S. 149 (1956) _. 7, 10, 11, 22

NLRB v. Wyman-Gordon Co.,

394 J.S. 759 (1969) 17

FPC v. United Gas Pipeline Co.,

393 U.S. 71 (1968) ........... eee

Regal Kniwear Co. v. NLRB,

324 U.S. 9 (1945) wae ee

SEC v. Chenery Corp.,

318 U.S. 80 (1943) | 15

Senter v. General Motors Corporation,

532 F.2d 511 (6th Cir. 1976) cert denied,

429 U.S. 870 (1976) _. | 22

Shell Oil Company v. NLRB,

457 F.2d 615 (9th Cir. 1972) 11

Southern Steamship Co. v. NLRB,

316 U.S. 31 (1942) 20

Westinghouse Electric Corporation v. Schlesinger,

392 F. Supp. 1246 (E.D. Va. 1974),

aff'd, 542 F.2d 1190 (4th Cir. 1976) 17

Statutes and Regulations:

United States Code,

Title 5, §552 | ot | ee

Te

Page

Title 29, §151 ED IER RIO 2, 22

Title 29, §158(a)(1) 6

Title 29, §158(a)(5) 2, 6, 7, 8, 10

Title 42, §2000e 2, 20, 22

Title 42, §2000e-2(h) 21

EEOC Guidelines, 29 C.F.R. Part 1607 16, 21

HEW Rules and Regulations, 45 C.F.R. Part 99 18

Miscellaneous:

American Psychological Association,

“Standards for Educational and Psychological

Tests and Manuals” | 16

Bartosic and Lanoff, Escalating the Struggle

Against Taft-Hartley Contemnors, 39 Univ. of

Chicago L.Rev. 255 (1972) 13

110 Cong. Rec. 9599-9600 (April 29, 1964) 21

110 Cong. Rec. 13, 492 (June 11, 1964) 21

Fanning, The Obligation To Furnish Information

During The Contract Term,

9 Ga. L.Rev. 375 (1975) 11

Guion, R.M., Personnel Testing, 1965 20

Personnel Policies Forum, No. 114, September, 1976

(BNA) : 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-968

DETROIT EDISON COMPANY,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

BRIEF AMICUS CURIAE

SUBMITTED BY THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

IN SUPPORT OF PETITIONER’S

BRIEF

INTEREST OF THE AMICUS CURIAE

The Chamber of Commerce of the United States is the

largest business federation in the United States, with a

total membership in excess of 74,000 enterprises and

organizations representing businessmen and women

throughout the United States. More than 3,700 state and

local Chambers of Commerce and trade associations are

members.

The case sub judice is of vital concern to the large

number of Chamber members who rely upon testing in

selecting or promoting employees — a reliance which

_ pn

enables employers not only to fulfill their obligations under

Title VII of the Civil Rights Act of 1964 to ensure an

objective selection process, but also to minimize the risk

of selecting unqualified personnel to perform jobs vital to

an employer’s operations.

The value of testing as an objective employee selection

device in American industry and government has been

confirmed by several comprehensive studies, including

surveys conducted by the Personnel Policies Forum in

September, 1976 (PPF Survey 114, p. 1 (BNA, 1976) )

and by the United States Civil Service Commission’ in

December, 1977. The decision below, if allowed to stand,

will pose significant, if not insuperable, obstacles to the

continuation of the extensive testing program of Chamber

members.

QUESTION PRESENTED

Whether the Company violated Section 8(a) (5) and

(1) of the Act by refusing to supply the Union with copies

of an aptitude test battery, the applicants’ test papers,

and employee-linked test scores.

STATEMENT OF FACTS

The Detroit Edison Company (“the Company”) is a

public utility engaged in the generation and distribution of

electric power in the State of Michigan. Since approxi-

mately 1943, the Union’ has represented various em-

ployees of the Company in approximately 28 bargaining

units, including a unit composed of operating and main-

' Status of Test Usage in FY 77, Technical Note 77-2, Test

Services Section, Personnel Research and Development Center,

United States Civil Service Commission (Dec. 1977).

? Local 223, Utility Workers Union of America, AFL-CIO (here-

after, “the Union”).

Ae EES oom

—

tenance employees in the production department of the

Company’s Monroe power plant (P.A. 19a).* Since its

certification in the Monroe unit on April 1, 1971, the Union

has entered into two successive collective bargaining agree-

ments covering the operating and maintenance employees,

the second of which was executed on July 3, 1972

(P.A. 20a).

In late 1971, the Company determined to fill six unit

positions in the Instrument Man B classiffication — a job

whose dutics include the maintenance of instrumentation

vital to the plant’s operation. Among the posted require-

ments for the Instrument Man B position was a minimum

of “recommended” on a battery of aptitude tests admin-

istered by Company-employed psychologists (P.A. 20a).*

The ten Monroe employees who bid for the position were

rejected ° because they failed to achieve a “recommended”

score on a test battery which was first developed by the

Company in 1958, “refined” in 1969-1970, and twice

validated by the Company’s industrial psychologists

(P.A. 21a; A. 75-78, 178-179 .°

3“P.A. references are to the Appendix to the Petition for

Certiorari; A” references are to the Appendix that was prepared

after the petition was granted.

* The other listed qualifications included high school credits for

two years of mathematics and one year of science and a satisfactory

physical examination and attendance record. The only selection

standard challenged by the Union was the aptitude test.

* Five of the six positions were filled by the five most senior

applicants who did achieve a “recommended” score; the sixth posi-

tion was taken by an incumbent Instrument Man from another

location.

® The Instrument Man test battery was revalidated in 1969-1970

at the suggestion of the technical engineers of the Company's power

plants. In 1972 the battery was reviewed by an outside consultant,

the National Compliance Company (“NCC”), in conjunction with

its revalidation studies of 15 additional job test batteries utilized

by the Company. It should be specifically noted that the validity of

the test is not in question (A.92-93, 100, 344).

a von

On January 17, 1972, the Union filed a grievance under

the collective bargaining agreement protesting the Com-

pany’s reliance upon the test results to deny the Monroe

bidders promotion to Industrial Man B (A. 120).’ While

denying the grievance, the Company offered to confer with

the Union “to enhance their understanding of the Com-

pany’s objectives in the testing area” — an offer which

the Union rejected as “completely unacceptable” (A. 153,

154). Accordingly, the Union requested arbitration of the

grievance on October 27, 1972 (A. 154).

Thereafter, on March 5, 1973,° the Union requested for

the first time the following information: (1) the actual

battery of tests; (2) the method of scoring and the criteria

for establishing the “cut-off” score of 10.3; (3) a report

on the test validation; and (4) the report of the National

Compliance Company (A. 121). In response to the Union’s

request, the Company arranged a meeting on April 2 to

explain to the Union the entire testing program (A. 26-27,

122). At the April 2 meeting, the Company furnished the

Union with the validation studies for the Instrument Man

B test battery conducted by both the Company’s psychol-

ogists and the NCC (P.A. 31a; A. 13-14, 343-378). The

Company declined, however, to provide the Union the test

batteries, the actual test papers or the actual test scores

of the applicants, as a consequence of which the Union,

on April 4, filed with the National Labor Relations Board

(“NLRB” or “Board”) an unfair labor practice charge,

alleging that the refusal to provide the requested informa-

tion violated the Company’s duty to bargain in good faith

(Section 8(a) (5)) (A. 104-106).

While the charge was pending before the NLRB, hear-

™ The collective bargaining agreement requires that promotion be

based on seniority “whenever reasonable qualifications and abilities

of the employees being considered are not significantly different....”

® All dates hereafter refer to “1973,” unless otherwise indicated.

—

ings were conducted before Arbitrator Jones on May 23,

24, 30 and 31 (A. 110). At the outset of the May 23

hearing, the Union requested that the Arbitrator require

the Company to supply copies of the test (A. 14, 123-124).

During the hearing, the Company supplied the following

information:

1. Its 1970 validation study.

2. The 1972 NCC report.

3. Explanations of the tests utilized.

4. Representative sample questions.

Also during the hearings, the Company offered to admin-

ister the test battery to the Union’s representative and to

disclose the test scores of employees who did not object

to their release — an offer rejected by the Union (A. 6-7,

44). Finally, the Company revealed the examinees’ test

scores without linking them to the applicants’ names

(A. 279-280).

After the close of the original arbitration hearings, the

Union — notwithstanding the extensive information pro-

vided or offered by the Company — reiterated on June 2

its request for “the actual tests, scores and weights” (A.

125-126). By letter dated July 10, the Company, while

again declining to furnish either the actual test battery or

scores linked to individual names, responded affirmatively

and in detail to the Union’s request concerning the battery

weights and scoring mechanisms (A. 127-131). On July

23, Arbitrator Jones ruled that he was not authorized

under the contract to compel the Company to furnish the

information, although he invited the Union to produce

case Citations for the contrary proposition — an invitation

declined by the Union (P.A. 67a). Four days later the

Union and Company agreed that the Arbitrator should

decide the merits of the grievance without the requested

information, subject to the Union’s right to reopen the

poe en

arbitration proceeding “if the Company ever in fact is

ordered to . . . disclose the actual tests as a result of a

final court order”. . . (A. 138-139). Accordingly, on

December 3, the Arbitrator ruled that the Company did

not violate the collective bargaining agreement by estab-

lishing an acceptable score on the test battery as a qualifica-

tion for the Instrument Man B position, but directed the

Company to re-examine the three employees with scores

between 9.3 and 10.3 (P.A. 76a).° In so ruling, the

Arbitrator underscored that the actual test questions “prove

nothing” and that the “union’s position was [not] damaged

in any way by lack of access to the test” (P.A. 72a).

PROCEEDINGS BELOW

On the basis of the foregoing, the Board concluded that

the Company’s failure to furnish the Union with the re-

quested information violated Section 8(a) (5) and (1) of

the National Labor Relations Act (“the Act”). As remedy

therefor, the Board (Member Kennedy, dissenting) ordered

the Company to supply the Union with copies of the test

battery, the applicants’ test papers, and the applicants’

test scores linked to individual names. In so ordering, the

Board majority rejected the Administrative Law Judge’s

recommendation that the Company be required to deliver

copies of the test battery, including the applicants’ actual

test papers, only to a “qualified psychologist” selected by

the Union (P.A. 14a-17a).

The Sixth Circuit (Circuit Judge Weick, dissenting)

enforced the Board’s order, rejecting the Company’s con-

tentions that disclosure to the Union could destroy the

utility of the tests, require the Company’s industrial

psychologists to breach their professional ethical code, and

invade the privacy of the employees whose test scores the

®Upon re-examination, one employee was promoted to the

Instrument Man job; two were again rejected (P.A. 39a).

—

Company is also required to divulge (P.A. 1a-12a). Sub-

sequently, on November 22, 1977, the Sixth Circuit denied

a petition for rehearing filed by the Company. On January

4, 1978, the Company filed a Petition for a Writ of

Certiorari which this Court granted on March 27, 1978.

SUMMARY OF ARGUMENT

Under Section 8(a; (5) of the Act, the employer is

obligated to furnish the union information “relevant” or

“necessary” to the performance of its statutory duties

NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). A

failure to supply even relevant information does not, how-

ever, constitute a per se refusal to bargain in good faith.

NLRB v. Truitt, 351 U.S. 149 (1956). Instead, in deter-

mining whether the employer’s non-disclosure is in good

faith, the NLRB is required to consider the “circumstances

of the particular case” and to balance the conflicting

interests at stake. NLRB v. Truitt, supra, 351 U.S. at 153-

154. The NLRB and court below admittedly considered

only the interests of the Union, disregarding (1) the Com-

pany’s interest in its testing program; (2) the psychologists’

interest in maintaining the ethical standards of their pro-

fession; and (3) the examinees’ interest in privacy.

Test security — and the consequent utility of tests under

Title VII of the Civil Rights Act — is jeopardized by the

Board’s disclosure requirement. Thus, the NLRB’s

restriction against unauthorized dissemination of the test

battery *° cannot be enforced in view of the impracticality

of policing compliance therewith and the unavailability of

a contempt sanction. In any event, even if the Union were

adjudged in contempt for a violation of the “restrictio.:,”

the Company is denied an adequate remedy since the tests

a0 The “restriction” is limited to the test battery itself; accordingly,

the Union is not even arguably constrained from disseminating the

actual test papers and employee scores.

will have been invalidated and revalidation of a test

battery — apart from its cost — requires years and could

again be defeated by a recalcitrant or “negligent” union

official.

ARGUMENT

THE BOARD ERRONEOUSLY CONCLUDED THAT

THE COMPANY’S FAILURE TO SUPPLY THE RE-

QUESTED TEST MATERIALS VIOLATED SECTION

8(a) (5) AND (1) OF THE ACT

A. Section 8(a) (5) Of The Act Does Not Require Disclosure Of

Information That Is Not Even “Probably Relevant” To The

Union’s Administration Of The Contract

In NLRB v. Acme Industrial Co., supra, this Court

reaffirmed the employer’s obligation under Section 8(a)

(5) of the Act to provide the union information that is

“probably” relevant to the discharge of its statutory

responsibilities. Acme, we submit, establishes a rule of

presumptive relevance of requested wage and related infor-

mation; however, if the employer effectively rebuts the

presumption, the burden shifts to the union to demonstrate

relevance. Emeryville Research Center, Shell Div. Co. v.

NLRB, 441 F.2d 880, 885 (9th Cir. 1971). Compare

Kroger Co. v. NLRB, 399 F.2d 455, 459 (6th Cir. 1968).

The presumptive relevance of the desired test materials

was rebutted by uncontradicted testimony that the only

information necessary to determine the validity of the bat-

tery is the 1970 and 1972 validation studies that were

provided at the April 2, 1973 meeting (A. 50-51, 71-72,

79-80, 191). Accordingly, disclosure of the battery itself

is superfluous — a view obviously shared by the Arbitrator:

The Union questioned the validity of the test by

reference to the type of question asked. It was to

further this line of questioning that the Union desired

a copy of the test. But this was simply a questioning

—

of the face validity of the test. Such questions, even

if taken from the test itself, prove nothing. Face

validity does not prove or disprove the validity of the

test in determining the aptitudes necessary for success-

ful job performance . . . In short, the Arbitrator does

not believe that the Union’s position was damaged

in any way by lack of access to the test (P.A. 72a).

In light of the Company’s effective rebuttal, the Union was

not entitled under Acme to rely on a vague avowal of

relevance to establish its right to the information:

.. . [The tests] are an entirely new dimension. It was

a new hurdle over which the employees had to jump

before they’d even get consideration . . . I would see

the relevance of the tests to the job. Obviously if there

was Einstein’s theory in there I would say that was

an unfair test or things like that (A. 24).

In its opposition to the petition for certiorari, the Board

apparently contends (Br. 7-8) that the Company’s failure

to except to the Administrative Law Judge’s disclosure

order constituted a tacit admission of the “probable” rele-

vance of the test materials. However, the Law Judge re-

quired the Company merely to submit the test battery to

a qualified psychologist retained by the Union — a pro-

posal that the Coffipany voluntarily advanced at the outset

of the unfair labor practice hearing and, accordingly,

would have no reason to challenge before the Board.

Conversely, the Baard’s refusal to adopt the Law Judge’s

recommended order “revived” the exception and adequately

preserved the point for judicial review. Compare NLRB v.

Ochoa Fertilizer Corp., 368 U.S. 318, 322 (1961).

In any event, the Board seeks to justify its disclosure

requirement on the ground that the information may enable

the Union to learn “whether the tests are truly job related

or contain objectionable distortions . . ., whether they have

built-in bias and are, in fact, discriminatory .. .” (P.A.

— we

47a: Bd. Br. 7, n. 7). The Board, however, overlooks the

essential, undisputed point that a valid and reliable test

battery, by definition, will contain neither “distortions” nor

“built-in bias.” Indeed, the Board concedes (P.A. 47a;

Br. 7, n. 7) that the statistics offered by the Company

“tend to show that the tests are valid to serve the employer's

purpose; i.e., they may serve to identify those employees

likely to do well on the job” (emphasis in original). We

submit that the Board’s concession forecloses an argument

before the Arbitrator that the tests are “discriminatory”

or contain “objectionable distortions;” if th battery reliably

predicts which employees will competertly perform the

vital duties of an Instrument Man B, the Arbitrator’s

inquiry is at an end.”

B. Disclosure of The Requested Information—Even If “Probably”

Relevant Within The Purview Of Acme—Was Not Warranted

Under NLRB v. Truitt

1. Introduction

In NLRB v. Truitt, supra, this Court, while concluding

that an employer violated Section 8(a) (5) by declining

to produce requested financial data to substantiate a

claimed inability to afford a wage increase, cautioned:

We do not hold . . . that in every case in which

‘1 In its opposition to the petition, the Board maintains (Br. 7,

n.7) that the Arbitrator “reserved the right of the Union to reopen

the arbitration case if it obtained the materials through court

order” — a point which the Board evidently raises to bolster its

claim that the materials requested by the Union are, in fact, relevant.

As a threshold difficulty, the Arbitrator did not sua sponte reserve

the Union’s right to reopen; he merely sanctioned an agreement of

the parties (supra, pp. 5-6.) In any event, the Arbitrator did not -

indicate that his resolution of the contract issues was impeded by the

unavailability of the materials requested by the Union. Accordingly,

the Arbitrator would not reach a different result if the requested

materials were before him — a circumstance which underscores the

futility of the proposed disclosure.

_—

economic inability is raised as an argument against

increased wages it automatically follows that the

employees are entitled to substantiating evidence.

Each case must turn upon its particular facts [foot-

note omitted]. The inquiry must always be whether

or not under the circumstances of the particular case

the statutory obligation to bargain in good faith has

been met (351 U.S. at 153-154).

As underscored by the dissenting Justices, the Board in

Truitt had applied a wrong standard in ruling that the

employer’s failure to supply the requested financial infor-

mation constituted a per se refusal to bargain in good faith.

Subsequently, this Court confirmed that under Truitt a

refusal to supply information is merely evidence of bad

faith, NLRB v. Insurance Agents’ Int'l Union, 361 U.S.

477, 487 (1960). See also Shell Oil Company v. NLRB,

456 F.2d 615, 618 (9th Cir. 1972). (“The Board asserts

that once information is shown to be relevant to the Union’s

performance of its role as bargaining representative, this

fixes the duty of the Company to produce and any failure

to produce is per se an unlawful refusal to bargain. How-

ever, this is not the law.”); Kroger Co. v. NLRB, supra,

399 F.2d at 456, 458 (Truitt requires consideration of the

“circumstances of the particular case” and a balance of

the “conflicting” interests at stake). See, generally, Fan-

ning, The Obligation to Furnish Information During The

Contract Term, 9 Ga. L. Rev. 375, 376 (1975). (“It is

important to note that the [Truitt] Court was not making

a per se finding” ).'*

Initially, the Company’s gocd faith should be evaluated

in light of the “wealth of material” the Company did supply

the Union (supra, p.5) — material which was “sufficient

'2 NLRB v. Acme Industrial Company, supra, 385 U.S. at 435-36,

confirmed the employer’s obligation to furnish the union information

“necessary” to the performance of its statutory responsibilities, but

A not disturb Truitt’s rejection of a per se analysis of the “good

” issue.

—=—.

to permit the union to . . . perform its duties under the

collective bargaining agreement” (P.A. 11a). In any event,

the NLRB and court below — contrary to Truitt — failed

either to consider the “circumstances of the particular case”

or to balance the conflicting interests at stake. Indeed, the

Company’s violation of Section 8(a) (5) flowed auto-

matically from the determination that the requested infor-

mation was arguably “of value to the Union in fulfilling

its responsibility to the employees” (P.A. 15a). The com-

peting interests disregarded below included: (1) the

Company’s interest in its testing program; (2) the psychol-

ogists’ interest in maintaining the ethical standards of their

profession; and (3) the examinees’ interest in privacy.

2. The Board’s Restriction Does Not Protect The Company's

Interest In Its Testing Program

In response to the Company’s argument that unauth-

orized disclosure would invalidate the aptitude tests, the

Board, with the approval of the court below, merely

“restricted” the Union from disclosing their contents to

employees — a restriction which dissenting Judge Weick

termed “really siaive” and which, in addition, conflicts

with Kirkland v. Department of Correctional Services, 520

F.2d 420 (2nd Cir. 1975). (Nothing in Title VII requires

or authorizes an “advance review” by minority applicants

of the examination for the position to which they seek

promotion.) '* A threshold difficulty with a mere “restric-

tion” is that nothing in the Board’s court-enforced order

requires the Union not to publicize the tests or their results;

accordingly, the availability of a contempt sanction, we

13 The Board seeks (Br. 8, n.8) to distinguish Kirkland on the

ground that the order reviewed by the Second Circuit required dis-

closure to “potential test-takers.” The Board evidently misses the

fundamental point discussed in detail below: disclosure to the Union,

rather than to a qualified psychologist, similarly risks “foreknowl-

edge” of the examination by potential examinees and the consequent

invalidation of the battery.

ee

I ERS ON, OE REE 8 eet es

a, po

submit, is at best speculative.'* Indeed, even assuming the

Board’s willingness to initiate contempt proceedings

against the Union,'* the Court, we submit, lacks jurisdic-

tion to enter a contempt judgment against a nonparty

“whose rights have not been adjudged according to law”

Regal Knitwear Co. v. NLRB, 324 U.S. 9, 13 (1945);

Chase Nat. Bank v. Norrwalk, 291 U.S. 431, 436 (1934)-

'* A similar view was recently expressed by a commentator:

The Court thought it could accomodate Detroit Edison’s

concerns by restricting the union’s right to use the tests and

by forbidding disclosure, but the restrictions are likely to be

no more effective than the available sanctions. The general

remedy for violation of a court-enforced Board order is to

find the violator in civil contempt [footnote omitted], but

where, as in Detroit Edison, the union does not intervene in

the enforcement proceeding, the contempt sanction may be

unavailable [footnote omitted]. Note Psychological Apti-

tude Tests and the Duty to Supply Information: NLRB

v. Detroit Edison Co., 91 Harvard Law Review 869, 875

(1978) (hereafter cited “Employee Test Disclosure”).

The Board’s contrary view (Br. 9-10, n.11) is based upon the

proposition — for which the Board cites no authority — that the

Union’s acceptance of the requested materials subjects it to contempt

proceedings for violation of the accompanying restrictions. However,

the Board’s “benefit-burden” theory does not invariably apply to a

“third party beneficiary” of a court judgment entered in a proceeding

to which it was not party.

1S Amalgamated Utility Wkrs. v. Consolidated Edison Co., 309

U.S. 261, 264 (1940), establishes that the Board has exclusive

Standing to institute contempt proceedings for failure to comply

with a court-enforced Board order. Morecver, the institution of

contempt proceedings, although dependent upon formal authoriza-

tion by the Board, may be “short-circuited” by the General Counsel

to whom the Board has delegated the discretionary authority to

determine whether or not to seek contempt. See, generally, Bartosic

and Lanoff, Escalating the Struggle Against Taft-Hartley Con-

temnors, 39 University of Chicago L.Rev. 225, 259-261 (1972).

In any event, the Board itself has displayed a reluctance to pursue

vigorously the contempt remedy. Bartosic and Lanoff, supra, at

pp. 256-257. In light of the Board’s contempt record, the Company

can scarcely anticipate that the Board will authorize — or, i

that the General Counsel will even seek — contempt against a party

which neither committed an unfair labor practice nor was otherwise

on notice that its legal relationships were being adjudicated.

a"

Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2nd Cir.

1930).** Moreover, as the authority cited by the Board

(Br. 9-10, n. 11) recognizes, a contempt remedy is avail-

able only in the event of a wilful violation of the restriction;

according'y, inadvertent disclosure by the Union "’ poses

a very substantial threat to test security undiminished by

the “deterrence” of a contempt sanction. In any event,

contrary to the Board (Br. 8-9), the assumption that the

Union may intentionally violate the court-imposed restric-

tions is not unsupported; indeed, the record discloses the

Union’s hostility to a testing program which, in its view,

threatens “seniority” as a primary determinant of employ-

ment conditions (A. 160-169)."* Finally, even if the union

were adjudged in contempt for a violation of the “restric-

tion,” the Company is denied an adequate remedy since

the tests will have been invalidated and revalidation of a

test battery requires years and could again be defeated by

a recalcitrant or “negligent” union official.

In its opposition to the petition, the Board attempts to

© In Alemite the court had enjoined Staff's oe from infring-

ing Alemite’s patent; after the injunction issued, Staff severed his

relationship with his former employer and infringed the patent. In

maintaining that Staff was not in contempt of the injunction issued

against his former employer, the Second Circuit noted that “it is

not the act described which the decree may forbid, but only that

act when the defendent does it” (42 F.2d at 833). By the same

token, even if the Union could be “enjoined,” the injunction would

not bind a former official, who could publicize the tests with

impunity. Harvey v. Bettis, 35 F.2d 349, $50 (9th Cir. 1929).

*T Even apart from ethical and professional constraints, qualified

psychologists are in a far stronger position by virtue of their training

and experience to prevent inadvertent dissemination of test materials.

18 As the Harvard commentator observed:

..» [F]ears about dissemination are even more understandable

when one recognizes that unions dislike testing because it

modifies their seniority systems [footnote omitted]. If dis-

semination makes it more difficult for the company to use tests,

the union may have little incentive to guard their confidentiality.

Employee Test Disclosure, supra, 91 Harv. L. Rev. at 875.

a a

rationalize rejection of the Law Judge’s recommendation

that the test battery be submitted only to a Union-retained

psychologist:

The Board decided to leave to the Union the decision

whether it needed a psychologist to aid it in analyzing

and interpreting the test materials [citation omitted].

Since the services of a professional psychologist are

costly, the Board was reasonable in not requiring the

Union to incur this expense unless it believed it was

- necessary for the intelligent processing of the griev-

ance (Br. 8-9, n. 9).

However, the uncontradicted evidence (A. 77-78) sup-

ports the Law Judge’s finding that the Union will require

professional assistance to analyze the test materials.'”

Accordingly, the Union’s only “decision” is whether to

retain a psychologist or forego intelligent interpretation of

the data.*” By the same token, the expense will necessarily

be incurred if the Union is interested in an analysis of the

test materials. In any event, nothing in the Board’s decision

indicates that cost considerations underlie its order and

under well settled rules of administrative law, the propriety

of the Board’s action must be judged solely on the grounds

invoked by the agency — not by counsel’s post hoc

rationalizations. SEC v. Chenery Corp., 318 U.S. 80

(1943); FPC v. United Gas Pipeline Co., 393 U.S. 71

(1968).

Apart from its “reasonableness,” the Board’s restriction

'* As Judge Weick underscored:

The furnishing of all the papers requested by the union

would have required the assistance of a psychologist, but

the union declined to accept such offer. These papers simply

could not have been evaluated by a lay person (P.A. 11a).

2° Significantly, the Union did not seek a “formal” psychological

evaluation of the “wealth of material” (P.A. 9a) that the Company

did supply — a circumstance which casts doubt on the bona fides

of its request (A. 45).

owtiiias

is obviously not calculated to prevent unauthorized dis-

semination of the test battery. Thus, “the Union” to which

the Board and Sixth Circuit have ordered disclosure at

least arguably includes not only its executive officers but

also grievance committee members, shop stewards or

“agents” — in short, several potential examinees. More-

over, the risks of unauthorized disclosure obviously in-

crease in direct ratio to the number of individuals entitled

to receive or inspect the materials. Apart from mere num-

bers, Union representatives untrained in industrial psychol-

ogy may, as discussed above, even innocently disseminate

the test materials. Under the foregoing circumstances,

policing Union compliance with the Board’s restriction

presents formidable, if not insuperable, obstacles.

3. The Board aud Sixth Circuit Disregarded the Interests

of the Industrial Psychologists and Examinees

Apart from the jeopardy to the Company’s testing pro-

gram, the Board and court below similarly disregarded

the interests of the industrial psychologists and the exami-

nees. Thus, as dissenting Judge Weick noted, the psychol-

ogists’ disclosure of the aptitude test battery constitutes a

violation of their profession’s Code of Ethics and exposes

the psychologists to disciplinary sanction, including sus-

pension or even revocation of their licenses. For example,

the “Standards for Educational and Psychological Tests

and Manuals,” published by the American Psychological

Association (“APA”) and recognized by the EEOC testing

guidelines, impose upon psychologists who administer tests

a responsibility — shared with the test developer or dis-

tributor — to maintain test security. In addition, Standard

J2 of the APA Standards limits disclosure of test scores

to individuals “qualified to interpret them.” The Comment

to J2 denies “test score” access to “curious peers” —- among

whom, we submit, may be included the employees repre-

sented by the Union.

ee

re a hE EE TN

ee ee

—

Finally, the employees who are examined by the Com-

pany’s psychologists, and with whom they enjoy a confi-

dential and privileged relationship, have an unquestioned

interest in privacy which neither the Board nor court below

evaluated. Compare Metropolitan Life Ins. Co. v. Usery,

426 F. Supp. 150, 168 (D.D.C. 1976) (“The disclosure

of information concerning an employee’s promotion pros-

pects, lack of promotion prospects, job performance evalu-

ations, and personal preference and goals, and the reasons

for an employee's termination contained in. . . Laffirmative

action plans] would constitute a substantial invasion of

the companies’ employees’ personal privacy”). Accord:

Hughes Aircraft Co. v. Schlesinger, 384 F. Supp. 292, 298

(C.D. Cal. 1974); Westinghouse Electric Corporation v.

Schlesinger, 392 F. Supp. 1246, 1249-50 (E.D. Va. 1974),

aff'd 542 F.2d 1190 (4th Cir. 1976).** Apart from a right

of privacy granted under the Freedom of Information Act

(“FOIA”), 5 U.S.C. §552, Congress has also recognized

a privacy interest of students and parents under the Family

Educational Rights and Privacy Act of 1974, 20 U.S.C.

§1232(g), to prevent the release of education records,

including grades, test scores or “personally identifiable”

*1 In its opposition to the petition, the Board mistakenly relies

(Br. 11, n.12) upon NLRB v. Wyman-Gordon Co., 394 U.S. 759,

767 (1969), in rejecting the contention that its order violates

privacy interests of the employees. In Wyman-Gordon, this Court

declined to disturb the Board’s balancing of interests; in the instant

case, the Board admittedly did not even consider the employees’

privacy interests. Moreover, the disclosure requirement in Wyman-

Gordon served an important statutory purpose of encouraging an

informed employee electorate; in the instant case, nothing is ac-

complished by compelling disclosure to the Union of materials that

are neither relevant to its statutory responsibilities nor, in any event,

intelligible without professional assistance. Finally, whatever statu-

tory objective is arguably promoted by the Board’s disclosure

requirement could be achieved by a more narrowly tailored order

that does not impinge upon employees’ privacy interests. For ex-

ample, a “coding” system could be devised that would preserve

individual employees’ anonymity while providing the Union the

requisite statistical data.

_—

information. See also the Rules and Regulations of the

Department of Health, Education and Welfare, 45 C.F.R.

$99.30. The prohibition against the release of test scores —

albeit in an “education,” rather than employment, con-

text — reflects a Congressional interest in minimizing

perceived invasions of privacy. Indeed, the Board, while

generally rejecting a privacy or confidentiality defense to

a refusal to furnish requested information,’ has itself

invoked an invasion of employee privacy to resist disclosure

of the names and addresses of employees eligible to vote

in NLRB elections — information requested under the

FOIA by law professors engaged in a NLRB voting study.

Getman v. NLRB, 450 F.2d 670 (D.C. Cir. 1971). In

rejecting the Board’s privacy defense, the Getman court

pointed out:

[Allthough a limited number of employees will suffer

an invasion of privacy in losing their anonymity and

in being asked over the telephone if they would be

willing to be interviewed [footnote omitted] in con-

nection with the voting study, the loss of privacy

resulting from this particular disclosure should be

characterized as relatively minor . . . The giving of

names and addresses is a very much lower degree of

disclosure; in themselves a bare name and address

give no information about an individual which is

embarrassing (450 F.2d at 674-675).

In contrast, the challenged disclosure of test scores of

named applicants is potentially very “embarrassing” — an

embarrassment which is obviously not justified by a mis-

perceived benefit to the Union from disclosure of the test

data.

22 E.g., Aluminum Ore, 39 NLRB 1286, 1297 (1942); Electrical

Mfg. Co., 173 NLRB 878, 880 (1968). Compare, however,

McCulloch Corporation, 132 NLRB 201, 207 (1961) in which the

Board, citing a potential “breach of confidence,” sustained the

employer's refusal to disclose in negotiations a wage survey of its

competitors who had provided the wage data only upon assurances

that the information would remain confidential.

—————a——— «esas

—

C. The Board’s Disclosure Requirement, Adopted B

y The Sixth

Circuit, Defeats The Company’s Right Under Title VII Of The

Civil Rights Act Of 1964 To Utilize Validated Aptitude Tests

We have demonstrated above that test security will be

compromised by the challenged disclosure requirement and

that, as a consequence, the use of aptitude tests under Title

VII of the Civil Rights Act of 1964 is jeopardized. Yet,

neither the Board nor the Sixth Circuit even considered

the impact of the disclosure requirement upon the extensive

testing programs in the private and public sectors that are

encouraged by Title VII and the implementing regulations

of the EEOC.

It is well settled that the National Labor Relations Act

(“NLRA” or “Act”) must be construed “in light of the

broad national labor policy of which it is a part” * —

including, of course, the national commitment to eradicate

employment discrimination. Griggs v. Duke Power Co.,

401 U.S. 424, 429-30 (1971); Alexander v. Gardner-

Denver Co., 415 U.S. 36, 47 (1974). Simply stated, the

National Labor Relations Board cannot issue orders which

have an impact on other employment legislation without

carefully accommodating one scheme to another. Indeed,

28 Emporium Capwell Co. v. Western Addition Commun. Org.

420 U.S. 50, 66 (1975). Compare Southern Steamship Co. '

i oy U.S. 31, 47 (1942) in which this Court cautioned

ard:

(T]he Board has not been commissioned to effectuate the

policies of the Labor Relations Act so single-mindedly that it

may wholly ignore other and equally important Congressional

objectives. Frequently the entire scope of Congressional purpose

calls for careful accommodation of one statutory scheme to

another, and it is not too much to demand of an administrative

body that it undertake this accommodation without excessive

emphasis upon its immediate task.

; The NLRB itself has elsewhere acknowledged that the NLRA

‘cannot be administered in a vacuum. The Board must recognize

the purposes and policies of other employment legislation, and

construe the Act in a manner supportive of the overall statutory

scheme.” Alleluia Cushion Co., Inc., 221 NLRB 999, 1000 (1975).

—

the Board must administer the Act in a manner supportive

of the overall legislative program. Southern Steamship Co.

v. NLRB, supra.

The decision below, requiring employers to grant unions

access to their aptitude tests,** will threaten the very ability

of companies to use such tests since the tests’ security is

critical to their usefulness. Obviously, if some individuals

who ultimately will be taking the test have advance knowl-

edge of the questions, the utility of the test will be destroyed.

“The obvious security problem is to avoid having applicants

know the test questions in advance. To maintain security,

tests not in use should be kept under lock and key .. .

Test security also implies a necessity for keeping tests out

of the hands of people who are not competent to use them

properly.” *°

The latter point is, of course, a critical issue in this case.

Rather than order the tests to be delivered to an industrial

psychologist chosen by the Union, the Board ordered that

the test materials be given to the Union itself. While a

psychologist is under professional and ethical obligations

not to reveal the tests to non-experts, there is no practical

constraint on the union’s disclosure. Moreover, as noted

above, the availability of a contempt sanction against the

Union — viewed most charitably to the Board’s position —

is at best “speculative.” Under the Board’s decision, then,

Detroit Edison will have no reasonable assurance that the

tests’ security will long be maintained — a cicrumstance

which leaves the Company little choice but to abandon the

use of tests altogether, thus thwarting its efforts to develop

*4 In addition, if carried to its logical conclusion, the Sixth Circuit

result may also compel employers to disclose to unions ne

evaluations, hiring interview reports or srimilar documents whic

may be considered “tests” under the Equal Employment Opportunity

Commission, Guidelines on Employee Selection Procedures. 29

C.F.R. §1607.

46 Guion, R.M., Personnel Testing, 1965, p. 504.

=

objective, nondiscriminatory selection standards which

conform to the requirements of Title VII.

Accordingly, in defining the scope of the employer's

obligation under Section 8(a) (5) of the Act to furnish

information that may assist the union in performing its

representative functions, the Board must consider the

potential impact of its orders upon implementation of the

Congressionally-mandated equality of employment oppor-

tunity — a goal which is facilitated by reliance upon

properly validated and administered aptitude or ability

tests. See, e.g., Section 703(h) of Title VII of the Civil

Rights Act,*" Equal Employment Opportunity Commission

(“EEOC”) Guidelines on Employee Selection Procedures,

29 C.F.R. §1607.1(a) (“. . . [Plroperly validated and

standardized employee selection procedures can signifi-

cantly contribute to the implementation of nondiscrimin-

atory personnel policies ... in the development and

mainterance of an efficient work force and . . . the utiliza-

tion and conservation of human resources generally”).

** Section 703(h), which expressly authorizes an employer to

administer and “act upon the results” of nondiscriminatory, pro-

fessionally developed ability tests, was a response to Myart v. Moto-

rola, Inc. (reproduced in its entirety at 110 Cong. Rec. 5662-64

(March 19, 1964), a decision by a hearing officer of the Illinois

Fair Employment Practices Commission which, in the view of

proponents of 703(h), jeopardized the continuance of employer

testing programs:

.. . [Myart] is highly unreasonable, because if Title VII were

administered in this fashion, it would mean that an employer

would be denied the means of determining the trainability and

competence of a prospective employee, or the competence of

one who is currently employed and who is being considered

for promotion. (Remarks of Senator Tower (R. Tex.) at 110

Cong. Rec. 13, 492 (June 11, 1964)).

See also the exchange between Senators Fulbright (D. Ark.) and

Ellender (D. La.), printed at 110 Cong. Rec. 9599-9600 (April 29,

1964). In short, the legislative history of Section 703(h) discloses

a vital interest in protecting employer reliance upon properly vali-

dated tests in determining employment conditions.

See also Griggs v. Duke Power Co., supra, 401 U.S. at

433-34; Albermarle Paper Co. v. Moody, 422 U.S. 405,

430-31 (1975) (EEOC testing guidelines are entitled to

“great deference”).

Even a cursory analysis of the decisions below reflects

a failure to accommodate the policies of the NLRA and

Title VII. Thus, Section 8(a) (5) has never previously

been construed to require an employer to disclose to unions

aptitude tests or test scores achieved by named applicants.

In fact, the General Counsel, citing the impact of a dis-

closure requirement upon the utility of tests, previously

refused even to issue a complaint. /nternational Telephone

and Telegraph, Federal Division, 22-CA-499, 46 LRRM

1387 (1960). Nor is the Board’s construction of Section 8

(a) (5) required or even contemplated by NLRB v. Truitt

Mfg. Co., supra, which, as detailed above (pp. 10-12),

defines the appropriate inquiry of the NLRB under the

“good faith” requirement of Section 8(a) (5) in evaluating

an employer’s refusal to provide requested information.

Moreover, as noted above, the significance under Title VII

of properly validated and administered tests as a nondis-

criminatory, objective determinant of employment condi-

tions can scarcely be disputed. Compare Albermarle Paper

Co. v. Moody, supra, 422 U.S. at 432-433; Senter v.

General Motors Corporation, 532 F.2d 511, 529 (6th Cir.

1976), cert. denied, 429 U.S. 870 (1976), and cases c'ted

at n. 56. Thus, the NLRB should have weighed the im-

portance of employer compliance with the EEOC testing

guidelines, which extend far beyond paper and pencil tests,

against the importance of union access to information

which is of no discernible benefit to the union or its mem-

bers. The national labor policy in favor of open and good

faith bargaining is hardly isapaired by maintaining the

privacy and confidentality of the test materials in question.

In short, the failure of the Board and Sixth Circuit to

evaluate the “good faith” requirement in light of Title

eee

—_ ee

VII's policy to promote an objective selection process, of

which “job-related” tests are an integral part, alone requires

this Court to reverse the decision of the Sixth Circuit.

CONCLUSION

For the above-stated reasons, this Court should reverse

the decision of the Court of Appeals.

Respectfully submitted,

WALTER B. CONNOLLY, JR.

WILLIAM J. RODGERS

STEVEN C. KAHN

Pepper, Hamilton & Scheetz

1776 F Street, N.W.

Suite 200

Washington, D.C. 20006

Attorneys for Amicus

STEPHEN A. BOKAT

National Chamber

Litigation Center, Inc.

1615 H Street, N.W.

Washington, D.C. 20062

Of Counsel