Warren E. Burger: We'll hear arguments next in 968, Detroit Edison Company against the Labor Board. Mr. McGuinn, I think you may proceed whenever you're ready.
John A. McGuinn: Mr. Chief Justice and may it please the Court. The case before you this morning concerns the subject of employee aptitude testing and whether the duty to bargain in good faith requirement of Section 8 (a) (5) of the Act requires those increasing numbers of employers, both public and private who used testing whether it requires them to turnover to Unions copies of the actual tests involved, the actual tests, sheets, submitted by the applicants and the scores achieved by the applicants linked with the name of the applicant. In order to place this issue in its proper factual contexts, a few points have to be stressed. First, the test involved in this case, the Minnesota Paper Form Board Test and the six part EPSAT test are aptitude tests. It do not measure the acquired knowledge needed of a Detroit Edison Instrument Man. They just test the ability to get that knowledge. And the job involved in this case, the Instrument Man Job is one of critical importance to this company. This employer works on precision instruments, technically complex. He is in fact in charge of the nervous system of the power plant. Now the record in this case shows that the Instrument Man test battery is highly predictive of success on the job. There is an 80% chance that those scoring above the 10.3 cutoff score will be successful performers on a job and conversely there is an 80% chance that those scoring below 10.3 will be unsuccessful Instrument Man.
William H. Rehnquist: Since this isn't a Title VII case, how does that bear on your argument here?
John A. McGuinn: It bears on the argument of the relevance of the test items to the Union. If we take it as a given that this test that this test is a valid predictor of performance on the job, I say that the Union does not need the test items themselves Mr. Justice Rehnquist in order to carry on their statutory function of representing the employees.
William H. Rehnquist: Whereas if a test were not predictive at all, you would feel the Union had a greater right of access to it?
John A. McGuinn: Yes. I think we have a very suspect test here. Yes, the test should be turned over to a psychologist to the Union's choice for him to make a determination.
Warren E. Burger: But you wouldn't want the general disclosure?
John A. McGuinn: No, I would not want general disclosure because that ruins the validity of the test.
Warren E. Burger: Well, does Detroit Edison object to the disclosure to -- what was sorted by the hearing examiner here?
John A. McGuinn: No Your Honor, it did not. The Detroit Edison Company in fact made that suggestion at the outset of the unfair labor practice hearing to the administrative law judge. Exactly, the suggestion that he took, that is to turn over to a psychologist of the Union's choice. Next, I think you must understand that this company furnished the Union with what Judge White, dissenting Judge White found was a wealth of information on its testing program. This included the two validation studies done on the test. Some 146 sample items similar to but not identical to the items on the two tests themselves an explanation of the battery weights and the raw scores on the tests. The raw scores achieved by the applicants on the tests but not linking it with the name of the applicant just putting it by alphabetical designation and an offer to release the scores linked with the names of the applicants for any applicant who consented to such release and finally and most importantly, the offer to disclose the test to a qualified psychologist of the Union's choice. A final factual consideration is that during the pendency of the labor board case, the Union prosecuted grievances of the unsuccessful applicants to arbitration. In these proceedings, the Union sought copies of the test materials that they are seeking in this case. And the arbitrator found in view of the wealth of material that the company did furnish, that production of the actual tests was irrelevant to this consideration of the case and also as the result of that proceeding, I think you should know that the arbitrator affected a compromise between the position of the Union and the position of the company whereby he told the company to reconsider three applicants who scored just below the 10.3 cutoff and as a result to that reconsideration, the company in fact hired one of those three persons. This then is the broad factual context in which this company has found to have violated the National Labor Relations Act. In the classical argument of this case would start with an analysis of whether the test information was of probable relevance and usefulness to the Union in carrying out its statutory duties and responsible under the Acme case. Now, with your indulgence, I would like to leap ahead and assume for the moment for the purposes of argument that this information had some marginal relevance to the Union's function. Our conclusion is still the same. The test material should not be turned over to the Union directly. Why? I think we could -- we should start with the only common premise we share with the National Labor Relations Board in this case and that is as the Board acknowledges in Footnote 25 of its brief, there is a very strong public policy in favor of preventing the compromised of employment tests through dissemination. That public policy is rooted in the common sense fair play notion, the distribution of an employment aptitude test to persons who may take the test in the future, destroys the validity of the test as a predictor of employee performance and places those who have not seen the test at a competitive disadvantage to those who have seen the test. In this common sense, fair play notion has been incorporated in standards for education and psychological tests and manuals published by the American Psychological Association which in turn have been incorporated into the EEOC guidelines on testing. Now, since the filing of our brief, the joint agency guidelines on testing, Standard I-5 of the APA standards states that for tests other than achievement test, prior knowledge of the test items can destroy validity. In Standard J-2 of those same standards states the test scores should be reported only to those qualified to interpret them. And the EEOC guidelines expressly require safeguards to protect the security of test scores. This Court on three recent occasions, the Griggs case, the Albemarle case, and the Washington versus Davis case has held that the EEOC guidelines are entitled to great difference and should be regarded as expressing the will of Congress. This Court in the Albemarle case specifically approved the EEOC's reliance on the APA standards I've just mentioned. The common sense fair play concept behind employment test security was recently underlined by the Second Circuit. In the Kirkland case where that Court struck down a District Court ruling which would have provided that any new employment test would be reviewed by the plaintiffs. The Board itself prior to this case acknowledged this common sense fair play concept when its general counsel in 1960 refused even to issue a complaint in which the Union sought to review employment aptitude test. The Board's general counsel at that time referred to the “unique character” of the test and held that an advanced inspection would permit the content of the test to be widely disseminated thus impairing the usefulness of the test. Now, the Board's sole answer to this admitted strong policy was to invent what they called a restriction. A (Inaudible) statement that the Union was not to copy the tests or disseminate them and was to return them to the company after the arbitration proceeding. No restriction at all was placed on the dissemination of the test scores linked with the name of the application. This could presumably be printed in the Detroit Free Press.
Byron R. White: But that wouldn't compromise the test.
John A. McGuinn: No, it would not compromise the test but it would compromise the validity as seen by the EEOC. The EEOC says that a test scores should not be distributed. You see, it leads to a situation where somebody who scores 12.5 on this is then compared with somebody who scored 12.3 on it. There is no reason, as the arbitrator said, "This test is good because it doesn't compare somebody's score with that of somebody else's score". It's just as reported in terms of not recommended or acceptable.
William H. Rehnquist: I'm puzzled by your reliance on the EEOC guidelines as compared with the Board's action here because as I recall the EEOC is not charged by law with making interpretative with actually filling in blanks in the statute. And the Board, I've always assumed had more authority than in its adjudicatory function EEOC did.
John A. McGuinn: Well, by reliance on the EEOC's guidelines Your Honor is the reliance that this Court placed on those guidelines in the decisions that I mentioned.
Byron R. White: We had -- they've been -- we've never said that the EEOC power is equivalent to a -- a pow -- a what -- to a board or an agency that has power to issue regulations.
William H. Rehnquist: And we refuse to follow them in Gilbert versus General Electric.
John A. McGuinn: Well that's correct. I can only say what the Court did in the Albemarle case and Washington versus Davies case and they said these guidelines were entitled to “great deference” and should be regarded as expressing the will of Congress. Those are the Court's words. And so I think that when I am placed in a situation of the Detroit Edison Company where I have to follow Title VII as well as follow the National Labor Relations Board, you have put me into an impossible situation when you say, "Give the Union the tests and the test scores". As I said no restriction at all was placed on the dissemination of the test scores linked by the name of the applicant. Now, the Board seeks --
Byron R. White: But there was on the test.
John A. McGuinn: That there was on the test.
Byron R. White: And then do you say we -- that that restriction does not satisfy you?
John A. McGuinn: Yes, like dissenting Judge White on the Court of Appeals, I can only suggest to you that the Board's position is really naïve in the real world in which we find ourselves. It is really naïve because first, once the materials have been given to the Union, the company has lost control over them and it places on the company the admittedly new and very difficult burden of policing and enforcing that restriction. Second, as organizations properly responsive to their member's desires and without the professional standards and responsibilities of professional psychologists Unions are in a uniquely poor position to prevent dissemination of the materials. In the real world of today, the ubiquitous with its copying machine which everyone has requires extraordinary measures of security to prevent widespread dissemination. These are measures not ordinarily used or available to labor organizations.
Byron R. White: Do you think you could rely though on a -- on the Union's --
John A. McGuinn: Psychologist?
Byron R. White: -- psychologist?
John A. McGuinn: Yes, that psychologist is under a professional responsibility not to divulge tests and test scores linked with the name of the applicant. Yes, we're taking a risk, very large risk but it's a risk that we think is -- strikes the proper kind of a balance.
Byron R. White: But do you think we must assume the Union would disobey an order.
John A. McGuinn: No, I don't think that you have to under -- make that assumption. I think we're talking more here about inadvertent disclosure, the kind of thing where the test is put on somebody's desk and somebody picks it up or it's in a drawer without proper safeguards. I think that's the kind of situation we're really talking to hear as opposed to the intention of the business. However, I think we would be a little naïve if we didn't realize this record shows a decade's long hostility by this Union to the entire concept of promotion other than promotion by seniority, in other words, hostility to testing. And like dissenting Judge White, I can only wonder why the Union after being given a wealth of materials on the testing programs, still wants copies of the actual tests and the actual test sheets.
Thurgood Marshall: Mr. McGuinn.
John A. McGuinn: Yes sir.
Thurgood Marshall: I missed something, why is it the psychiatrist important to see this?
John A. McGuinn: The psychologist -- the importance of the psychologist to this Mr. Justice Marshall is that what we have here is an aptitude exam. In other words, it is not a test of what is required --
Thurgood Marshall: (Inaudible)
John A. McGuinn: -- of the Instrument Man. Therefore --
Thurgood Marshall: Aren't they experts in the testing business.
John A. McGuinn: The psychologists are the experts in the testing business. That's exactly it.
Thurgood Marshall: There are other than psychologists?
John A. McGuinn: Pardon.
Thurgood Marshall: There are some experts who are not psychologists.
John A. McGuinn: Well that's correct too, Your Honor.
Thurgood Marshall: Yes.
John A. McGuinn: But I think that --
Thurgood Marshall: But these are testers, these psychologists are experts in the testing field.
John A. McGuinn: Yes.
Thurgood Marshall: That's what you were looking for.
John A. McGuinn: That's right.
Thurgood Marshall: (Inaudible)
Potter Stewart: I can fully understand why the expertise of a psychologist would be an important ingredient in the devising of these test batteries but I should think any school boy could mark the papers so to speak, couldn't he?
Thurgood Marshall: Yes the marking of the paper --
Potter Stewart: Or any (Voice Overlap) --
John A. McGuinn: -- is basically a clerical function.
Potter Stewart: Exactly. I suppose, there are multiple choice questions, true or false or something like that.
John A. McGuinn: There are multiple choice questions. You can see the samples in the appendix as a matter of fact for the kinds of questions.
Potter Stewart: I mean, a machine could almost do it.
John A. McGuinn: Yes. In this case, a machine doesn't do it. It's done clerically but any clerical person.
Potter Stewart: But any layman -- any letter layman could do it.
John A. McGuinn: That is correct and we have people within the psychology group who do actually grade these tests.
Potter Stewart: But you don't need a psychologist's expertise to grade them, do you?
John A. McGuinn: No you do not. As it happened, the record in this case shows that they do have expertise but that is not necessary obviously to grade a multi-choice test.
William H. Rehnquist: Mr. McGuinn, in the Griggs case and I do not mean to delay this point unduly, where you in your brief quoted as saying that EEOC guidelines are to be regarded as expressing the will of Congress and you have a page citation to Griggs at 401 U.S.433-434. There is a sentence on page 40 30 -- 434 that says since the Act and its legislative history support the commission's construction, this affords a good reason to treat the guidelines as expressing the will of Congress. I take it you would want your brief qualified in the same way.
John A. McGuinn: Of course. I think the next problem we have, I have with the restriction is that there is a built in ambiguity about this restriction, about just what individuals comprised the Union to whom I am supposed to give over these materials. As I showed in my brief, this could be a very few people, or it could be a very large number of people. The Board's order or its restriction does not make it clear who it -- who is it to run to. And all of those persons who would be seeing these materials are also employees of the company who would be in a position to take the test themselves in the future. And the Board is clearly off the mark when it suggests that we, the company, could extract a pledge from these Union officials that they would never take the test in the future. I can think of no clear violation of Section 8 (a) (1) and (3) of the Act to tell the Union officials they must forego promotional opportunities because of their membership and activities in regard to a labor union. Fifth, even if the company were able to detect a violation of the restriction, he would have no independent remedy. It would have to rely upon the Board's general counsel to seek contempt proceedings in the Court of Appeals and its very difficult for me to consider how a Union can be held in contempt when the basic order runs against the company and not the Union and the Union wasn't even a party to the proceedings in the Court of Appeals. And sixth, even if the Union were found liable in contempt for a violation of the restriction, there is no adequate remedy since this company's testing program would have been gutted and would take years to make another revalidation study. And seventh, if this Court were to affirm the decision of the Sixth Circuit on the basis of the judicial protective order in the sanction of contempt for its violation, what will happen next when Unions generally seek such information from other employers. Must employers in order to obtain this judicial contempt protection refuse again to disclose the information, go through a meaningless Board proceeding, a meaningless Court of Appeals proceeding just to get the judicial contempt sanction protection. Literally, that's the only way that another employer down the road is going to be able to do it. And yet that makes no common sense at all. And the only other alternative would be for the employer to extract a contractual commitment against disseminating a material from the Union and the only remedy for a violation of that is an ordinary breach of contract suit. Thus, it is apparent that even this chimera of judicial contempt sanction protection will extend no further than the case in front of you today if it's accepted by this Court. Let me now leap backward for a moment and talk about the threshold question of whether the testing materials involved had any probable relevance or usefulness to the Union under this Court's decision in Acme Industrial Company. In here, we have to distinguish between the test and test sheets on the one hand and these test scores linked with the name of the applicant or the other. Going first to the test, consider first the wealth of material that the Union was given about the testing program including the validation studies themselves, including the sample questions given to the Union. Next, consider that the three professional industrial psychologists who testified in either the arbitration case or the Board hearing, each concluded that a review of the test itself would not be helpful in determining whether the particular test was valid.
Potter Stewart: Mr. McGuinn, to go back for a moment to what --
John A. McGuinn: Yes.
Potter Stewart: -- you just told us. Do you concede that 8 (a) (5) required the company to give what it did gives, the so-called wealth of material?
John A. McGuinn: Yes Your Honor.
Potter Stewart: You do.
John A. McGuinn: Yes.
Potter Stewart: And therefore you do --
John A. McGuinn: And we think that that was a valid way of responding to the Union's request for information that we didn't have to respond to it in exactly the way the Union wanted to get it. We gave what we considered to be the most relevant information and that is the validation studies themselves.
Potter Stewart: And you do concede that 8 (a) (5) required it as much as you did.
John A. McGuinn: Turn over the validation studies, yes. I think we went one step further when we gave them sample copies of the -- of items that were similar to but not the same as items on the test itself. I think that was a very helpful thing. I don't know whether that was strictly speaking required by the Act. I think the validation studies were. In answer to these three professional industrial psychologists, the Union produced no witness whatsoever who was a professional psychologist and the Board produced none. So that evidence is uncontradicted on this record. Another potent consideration on the issue of relevancy in my opinion is the fact that the arbitrator himself concluded that a review of the tests would prove nothing and that the Union's case was in no way damaged by lack of access to the test. Of course this Court has on many occasions held that arbitration is the preferred method of solving labor relations disputes. That was done in this case and it was done without the necessity of production of the test.
John Paul Stevens: Mr. McGuinn, just to follow up on Justice Stewart's question. Supposing there have been no arbitration at all, and the Union just made a demand out of the blue for possible future use in connection with possible arbitration, would you have an 8 (a) (5) obligation to comply?
John A. McGuinn: Without an actual case or controversy in other words?
John Paul Stevens: Correct.
John A. McGuinn: I think that this would have to be in conjunction with a real live -- life case. I just don't think these academic inquiries sent to a company at large --
John Paul Stevens: Yes, but once the arbitration proceeding was over, did not the -- of course the inquiry become academic?
John A. McGuinn: Well it is not strictly speaking academic now because the arbitrator pursuant to the agreement of both parties said that the arbitration proceeding could be reinstituted if the testing materials were in fact ordered to be produced by a Court.
John Paul Stevens: But didn't he conclude they were unnecessary for his decision?
John A. McGuinn: That's right. I don't think that the arbitrator is really going to change his mind if this Court should determine that the test should be made public.
John Paul Stevens: I'm just a little puzzled as to whether we should decide the case on the theory that they're needed for this particular arbitration which may be reopened or if they're needed in sort of a general way for future use and bargaining whatever may arise. Sort of to -- yeah that's right, the police compliance with the agreement of the future. I'm just -- just have a little trouble identifying what the standard of reference is in which we're supposed to judge the case by.
John A. McGuinn: Well, that's an interesting point whether an academic inquiry that comes in out of the blue, we would like to see XYZ material concerning your testing program whether that would lead to an 8 (a) (5) kind of an answer. I tend to -- this company believes in disclosing as much as possible to the employees and I think that the answer to your question for this company would be, yes we would be happy to disclose the validation study.
John Paul Stevens: Well, then I think I'm asking for a clarification of your answer to Justice Stewart. Was your answer predicated on a relationship to the arbitrator?
John A. McGuinn: Yes.
John Paul Stevens: It was.
John A. McGuinn: It was, strictly speaking.
Byron R. White: Suppose after a grievance has been processed, arbitrated, the Union just files an unfair labor practice claim that in the course of the arbitration, the employer committed an unfair labor practice. Now that's a perfectly -- that's -- the Board has a jurisdiction to hear that, I take it.
John A. McGuinn: Well my question would be what is the request now relevant to of the arbitration proceeding is over?
Byron R. White: The request -- all that -- what they want adjudicated is that the employer did commit an unfair labor practice.
John A. McGuinn: Well, in order to commit an unfair labor practice, we would have had to --
Byron R. White: Well, I know but they proceeded -- the request was made in the course of a -- and refused in a course of a grievance procedure --
John A. McGuinn: Alright.
Byron R. White: -- and that time, the Union thought the employer was breached -- was committing an unfair labor practice and it -- best they took it to the board.
John A. McGuinn: Apparently, the premise of your hypothetical was that the arbitration proceeding is now over.
Warren E. Burger: We'll resume there at one o'clock Mr. McGuinn.
John A. McGuinn: Alright, thank you.
Warren E. Burger: Mr. McGuinn, you may resume.
John A. McGuinn: Yes, Your Honor. I would like to try to answer the question pending at the break, I believe from Mr. Justice White and Mr. Justice Stewart. As I understand it, the question is whether the company is under a legal obligation to provide the Union information of the type provided by the company in this case even if there is no pending specific grievance. And the answer to that is that once the Union has made a showing of probable relevance and usefulness, whether that request is broadly framed or tied into a particular grievance, the obligation attaches to disclose materials such a validation study. And the reason for this is that we concede that the testing program does affect wages and other conditions of employment.
Byron R. White: That wasn't my question.
John A. McGuinn: Maybe if you could repeat your question.
Warren E. Burger: Well, an hour has elapsed, let Mr. Justice White try it again.
John A. McGuinn: Yes.
Byron R. White: Well, suppose in an election, in a Union election campaign, the employer threatens some workers, “if you vote, I'll fire you or something”. In any event, the election is over, the Union wins and the Union files an unfair labor practice charge that the Union -- that the employer committed an unfair labor practice. Will it just be dismissed because the election is over?
John A. McGuinn: No, it will not Your Honor. And the same is true here. If once the grievance is resolved in arbitration and the Union files an unfair labor practice to seek the information, the result --
Byron R. White: But they don't want the information. They want to -- just want a judgment that they committed an unfair practice during the arbitration.
John A. McGuinn: Yes, that -- it would not be moot just because the arbitration was concluded.Does that answer your question?
Byron R. White: Yes, it does.
John A. McGuinn: I would like to reserve the remaining time.
Warren E. Burger: Very well. Mr. Come.
Norton J. Come: Mr. Chief Justice and may it please the Court. The administrative law judge whose findings were adopted by the Board found that the information requested by the Union, the test questions and the actual test papers and scores of the employee applicants for the Instrument Man jobs were potentially irrelevant to the processing of the grievances which have been filed by the employees who had been denied for failing to attain the cutoff score on the test. And thus under the principles of Acme Industrial, the company violated its bargaining obligation in refusing to furnish this information to the Union. Now, before the Board, the company did not accept to the administrative law judge's finding that the test questions or the test battery and the test papers were relevant to the processing of the pending grievance. Indeed it all urged the Board to adopt that part of the administrative law judge's recommended order which provided that the tests and test papers be turned over to a psychologist selected by the Union who in turn would make them available to the Union and let it use them to the extent necessary for the processing of the grievances. The company accepted only to the administrative law judge's finding that the union needed to link the employees' names to the test scores. In these circumstances, we submit and under Section 10 (e) of the Act which precludes judicial review of contentions that were not raised before the Board, judicial review the question of the relevance of the test battery and the test papers is foreclosed. Nor may the company avoid this foreclosure by arguing as it does in its brief that it had no practical reason to challenge the AOJ's order because it had earlier offered voluntarily to turn over this information to appease the Union. The Union's cross exceptions put the company on notice that the portion of the order which it was willing to accept was subject to reexamination by the Board. And we submit that if the company had any question as to relevancy of that information that was the time it should have urged that at least as an alternative contention before the Board. Accordingly, as we see it and as the court below sought, the basic question really presented here is whether the Board reasonably exercised the broad remedial authority that it has under Section 10 (e) of the Act.
William H. Rehnquist: Mr. Come.
Norton J. Come: Yes sir.
William H. Rehnquist: Did the company before the board take the position that the administrative law judge's order was correct?
Norton J. Come: Well, in two places in its exceptions which we have lodged with the clerk, they urged and the word urge is theirs, the Board to adopt that part of the administrative law judge's recommended order. They accepted only to his recommendations insofar as it required that the test scores linked to employee names be turned over.
William H. Rehnquist: But they have no reason to accept to the -- his proviso that it'd be turned over only to a psychologist and since that favored them rather disfavor them.
Norton J. Come: That is their argument. However, --
William H. Rehnquist: Well, it's not only their argument, but it's rather self-evident, isn't it?
Norton J. Come: However, when the Union cross accepted to that part of the order, it is our contention that that put the company unnoticed that they would -- might lose even that part of the order and therefore, in order to protect themselves, they should have raised what the Board, at least the alternative contention that we don't think that we committed any unfair labor practice here to begin with. But they never raised that before the Board nor did they do so in their petition for reconsideration after the Board came down with its decision. Now, they say the basic question as we see it is whether the Board was reasonable in ordering the company to furnish to the Union directly rather than to a Union selected psychologist. These test materials where the Board order includes protective provisions to maintain test security. Now, the purposes for which the Union intended to use the test materials did not necessarily require the aide of a qualified psychologist. The Union was not challenging the company's showing that there was a high statistical probability that those applicants who did well on the test would do well in the Instrument Man job. For that, presumably, you might need a trained psychologist. Rather the Union was attempting to show that the test were nonetheless unfair to certain applicants who although they did poorly on the test, had the -- nonetheless had the ability to perform the job. The company acknowledges in its brief that those scoring less than 10.3 which was its cutoff point had at least the 20% chance of becoming successful Instrument Man -- Men and the Union was attempting to show that some of the low scorers were in this category. For example, the vocabulary sample of the section of the sample test and these weren't the exact questions because the company only submitted a partial sample, asked for definitions of words like homage, diabolic, impugn, and draw. Now --
Potter Stewart: They didn't really asked for definitions that they were multiple choice questions --
Norton J. Come: That is correct. But --
Potter Stewart: Yes.
Norton J. Come: -- they wanted to know if --
Potter Stewart: Yes.
Norton J. Come: -- they could recognize what that word meant.
Warren E. Burger: Or what they did not mean.
Norton J. Come: Or what they did not mean.
Warren E. Burger: In a multiple choice test, you don't need to know all the meaning of all the words.
Norton J. Come: Well, it helps if you do.
Warren E. Burger: Well, yes it does but you -- if you know the range you're in.
Norton J. Come: Yes. Now, if the Union could show for example that the Instrument Man job did not require a knowledge of such items and that employee Smith who had past experience in other jobs that were very closely related to the Instrument Man job where he had gotten uniformly high marks on, scored less than 10.3 simply because he missed these kinds of questions rather than those that were more job related. It would have a substantial basis for arguing to the arbitrator that Smith should not have been disqualified for the job merely before -- because he failed to meet the 10.3 cutoff score.
Potter Stewart: Well it seems to me that that's fundamentally inconsistent position that you described the Union is taking. If the Union begins by conceding the validity and reliability of these tests, which are after all aptitude tests, not proficiency test and their aptitude test presumably devised by people who know what they're doing. And the Union by conceding their validity and reliability concedes as much then how possibly is it consistent for the Union to take the position yes, but in some cases they're invalid and unreliable. And where do you stop when you do that, the company concedes and everybody -- the experts concede that there are 80% more or less reliable than those under 10.3, 20% of them might be good Instrument Men. But --
Norton J. Come: Well, the --
Potter Stewart: -- that's all conceded but that's true of any aptitude test, unless you get a 10%, I mean a 100% correlation factor.
Norton J. Come: But under the contract that was negotiated in which the Union as the representative of the employees has a duty to see that it has thoroughly administered the con --
Potter Stewart: Which requires for a promotion by seniority at the Monroe Plant except (Voice Overlap) --
Norton J. Come: Except where there are head and shoulder differences among the applicants.
Potter Stewart: Right.
Norton J. Come: Now the cast was a statistical major of trying to --
Potter Stewart: Of measuring the head and shoulder differences.
Norton J. Come: Yes but it was not --
Potter Stewart: Does the Union concede it's valid and reliable?
Norton J. Come: As -- but they are not conceding that the test will be 100% accurate --
Potter Stewart: But the employer (Voice Overlap) --
Norton J. Come: -- nor is the company conceding that the test is a 100% --
Warren E. Burger: You're asking for a perfect test and that's impossible.
Norton J. Come: But there in lies the basis for a grievance. Even the arbitrator on the basis of the fragmentary materials that he had found that there were at last employees --
Potter Stewart: Who were between 9.3 and 10.3?
Norton J. Come: Who should have been reexamined --
Potter Stewart: And the company hired one of them.
Norton J. Come: -- and on reexamining them, the company found that the qualifications of at least of one of them --
Potter Stewart: Yes.
Norton J. Come: -- was sufficient to override his low score on the test. Now the Union as the statutory representative of the employees we submit had a statutory obligation, indeed a duty to fairly represent these employees to ensure that any employee who had the qualifications for the job would at least have an opportunity to be considered even though he happen to be a poor tester as some of us are.
Potter Stewart: Oh, when you just throw out the test?
Norton J. Come: No.
Potter Stewart: I don't see that that's at all a consistent position. How can one concede the reliability and validity of a test and then say and yet it doesn't show anything. Because there a lot of people who get below 10.3 who are in fact qualified that's saying the test is unreliable and invalid.
Norton J. Come: I submit that --
Warren E. Burger: What more could the company do than reexamine the three that were raised and when they make a judgment, it isn't necessarily a judgment that they were wrong in the first time but they were willing on marginal case to take a chance. Does it mean any more than that?
Norton J. Come: I submit that all that the validity or the test shows that it has a statistical probability that they are still going to be employees who would -- could be shown are capable of performing their job notwithstanding their showing on the test.
Warren E. Burger: Well, we know and the testing field generally but that's true. There are people who pass bar examinations who never will make lawyers and there are people who fail who might make pretty good lawyers.
Norton J. Come: But the point that I'm making is because our basic position is that the company is not conceding -- has not accepted that the union's right to this information as to -- is merely to show that why the Board in framing the kind of order that it framed did not require the Union to go to the expense of necessarily hiring a union psychologist. The use that the Union wanted to make of the test didn't require that. And intelligent layman, someone who had familiarity with the operations of a power plant, an engineer might have been more help to the Union than would have been a professional psychologist. Now, I want --
John Paul Stevens: Mr. Come, can I get something straight.
Norton J. Come: Yes.
John Paul Stevens: You give the example of the vocabulary multiple choice question and said that might not have anything to do with the job. I don't understood you to imply that the Union would have access not only to the form of test, the actual batteries, but to the answers of particular employees. Now, that isn't right, isn't it? Don't they just get the scores of the employees and then the form of the test?
Norton J. Come: I think that they need to know the names of the employees and link them to the scores.
John Paul Stevens: But they would not know which questions they missed and which they got correct, would they? The employees, in the material -- I may have misunderstand the record and that's really I guess --
Norton J. Come: Yes.
John Paul Stevens: The material that must be disclosed is -- does it include the actual tests that the employees took or merely their scores and a master copy of the test.
Norton J. Come: No there are actual test papers as well.
John Paul Stevens: Oh I see. I misunderstood. Pardon me.
Norton J. Come: So that the Union could have the whole -- without the whole picture you would not know whether X scored low because he missed the physical science and mathematical questions that were germane to the Instrument Man job or not. You also would not be able to know whether there was any systematic bias in these tests.
William H. Rehnquist: Well I can see how you -- the Union could take that position if it hadn't conceded that the tests were relevant. If the -- if it said that employer is using this test as a ringer to really promote its own favorite sons or daughters but the Union as I take it is conceded that the test do have bearing and are permissible to use. The Government in its brief says so.-
Norton J. Come: But as the administrative law judge pointed out in his report on page 47a of the appendix to the position -- to the petition. There is a difference between the statistical validity of the test and the purpose for which the Union -- this information was relevant under the National Labor Relations Act. As the examiner -- as the law judge pointed out and I don't want to read all of it, statistical unrelated data which are available to the Union are sufficient to prove the validity of the psychological test for the purpose used. The statistics may indeed tend to show that the tests are valid to serve the employer's purpose. They may serve to identify those employees likely to do well on the job. However, the statistics do not serve to inform the employees or the representatives whether the tests are truly job related or contain objectionable distortions, whether in some they tend to undercut respondent's contract commitment to promote by seniority, whether there's no significant difference. And we submit that there is a crucial difference between the statistical validity of the test and whether or not an individual employee nonetheless has a substantial basis for grieving --
Warren E. Burger: Mr. Come, once you have conceded, once everyone agrees as they apparently do here that these tests are valid, that they have an objective purpose and they're fulfilling that purpose. Is this fundamentally different from any line drawing process in which in many decisions this Court has said when there's a line drawing process, it will inevitably include some people who should be excluded and excluded some people who should be included. Now that happens here, does it not?
Norton J. Come: Yes. That does happen with respect to decisions of this Court and also with respect to drawing legislation but I submit however that processing individual employee difference -- grievances under our collective bargaining agreement allows for more than just a general line. That's the purpose of having a grievance procedure and the right of individual employees to file grievances.
Warren E. Burger: Well, then the (Voice Overlap) --
Norton J. Come: The individual has a right under these procedures we submit to show that his case should not be covered by the general law.
Warren E. Burger: But if you're going to rely on individual appeals of each case which is what this surmounts to then why not just scrap the whole testing process what the employer make his management decisions that the Union got -- have a grievance on anyone that he does -- they don't like.
Norton J. Come: Oh, because the test is a tool. It is a valuable tool. But it is not the be all and the end all. Now, with respect to the Board's order here, it -- the argument is made that -- well, it looks only after the interest of the Union. It does not protect other important interest, namely the company's interest in maintaining test security. Now, and we think that the answer to that is as the Court of Appeals enforcing the Board's order stated is that the restrictions on use of the materials and the obligation to return them to the company which the Court enforced. In other words, the protective order adequately protects the company's interest in test security. Now, the Board's order accords the Union the right to see and study the test and they use the test and information contained therein to the extent necessary to process and arbitrate the grievances. However, the Union is directed not to copy the test or otherwise use them for the purpose of disclosing the test or the questions to employees who in the past or who may in the future take these tests or to anyone other than the arbitrator. And after the conclusion of the arbitration proceeding, the Union is retire -- is required to return all copies to the company.
Byron R. White: What about the scores, individual scores?
Norton J. Come: Well, as we read the terms of the protective order which are set forth on page 55a, when the Board --
Warren E. Burger: Of what, of the?
Norton J. Come: Of the appendix. In the remedy section.
William H. Rehnquist: The appendix to the petitioner?
Norton J. Come: Appendix to the petitioner. It says the respondent has directed to supply copies of the battery of tests administered to the employee applicants including the actual test papers of the applicants, and then the word “test” is used thereafter. As we read it, we believe that the Board was using the administrative law judge using the word “test” in the generic sense to include not only the battery of tests namely the test questions but also the actual test papers.
Byron R. White: So you -- and any information off the test papers, I take it.
Norton J. Come: Yes, Your Honor.
Byron R. White: I mean do you think it would violate this order if somebody said John Jones got a minus 61?
Norton J. Come: Well I think that there would but -- that it would because the Union show -- except in connection with the arbitration proceeding.
Byron R. White: Yes. So any information off the papers would be (Voice Overlap) --
Norton J. Come: As I interpret the order. Now, some argument --
Byron R. White: How did the Union interpret it? Or --
Norton J. Come: Well, --
Byron R. White: -- do you know?
Norton J. Come: I don't know how they interpret it but I'd be surprised if they did interpret it any differently. I think that that's a fair reading of the way these words were used. I'm not saying that the terms of the protective order could not be improved upon with the benefit of hindsight. But these are similar, the kinds of protective orders that the --
Byron R. White: Of course the case isn't over yet.
Norton J. Come: No the case is not over. The case is not over. I was going to say that the federal courts quite regularly enter protective orders of this sort in ordering disclosure of a sensitive information per under the federal discovery rules. Now, and the Union would be subject to a contempt citation where it -- to violate the terms of this protective order. Now, just as an individual bound by a protective order in a discovery proceeding would be.
Byron R. White: That would be at the behest to the Board, wouldn't it?
Norton J. Come: That would be at the behest of the Board but there's no --
Byron R. White: The general counsel, the general counsel?
Norton J. Come: The Board must bring the contempt proceeding.
Byron R. White: And the company has to ask them and then they have to respond.
Norton J. Come: That is correct but there is no reason to assume that the Board which is interested in seeing that its orders as enforced by the Court of Appeals are not flouted would not be very alert to checking any contempt there but --
Potter Stewart: But the Union wasn't -- the object of the -- for this where the Union wasn't a party in the Board proceeding or in the Court of Appeals --
Norton J. Come: Well --
Potter Stewart: -- and the order didn't run against the Union, --
Norton J. Come: Well --
Potter Stewart: -- did it?
Norton J. Come: I submit that the --
Potter Stewart: Did it as a matter of fact?
Norton J. Come: Well, it did not run against it except insofar as of the terms on the --
Potter Stewart: It's a condition of it -- of the turn over to the Union.
Norton J. Come: That is correct.
Potter Stewart: But I -- if I were representing the Union and somebody cited me in contempt, I think I'd have a very good case.
Norton J. Come: But I don't think that you would prevail for this reason Your Honor. The Union was a party to the board proceeding and actively participated in the litigation over its right --
Potter Stewart: It was a charging party, wasn't it?
Norton J. Come: That is correct. To obtain the test materials and the conditions under which they could be obtained. Now it had a right to go to the Court of Appeals if it objected to those conditions.Instead, it did not do so. It elected to permit the Board to enforce the order with these conditions in the Court of Appeals. In these circumstances, we submit that the Union is -- stopped to challenge the restrictions on the use of the materials. And if it were to accept the test materials under the terms of the Board's order as enforced by the Court of Appeals, it would be bound by those restrictions and subject to a contempt citation. Beyond that, I wish to point out that there are important institutional reasons why it cannot be assumed as the company does that the Union would be breaching the security of these test materials. The Union has had a bargaining relationship with this company for over 28 years. It has been certified in about 28 bargaining units. It would certainly be very, very short sighted on its part were it to jeopardize its long standing relationship and its continuing relationship with this company to misuse these test materials. Moreover, it would jeopardize its position with the employees.
William H. Rehnquist: But it has had a historic resistance to the test too, hasn't it?
Norton J. Come: Well, I think all that the --
William H. Rehnquist: Rather than seniority?
Norton J. Come: Well, all that the record shows on that is that it attempted to obtain in the contract a provision that would make seniority the sole governance for promotions. But having lost on that, there is no basis for assuming that it's going to go around and broadcast these test materials. It represents even the employees who scored high on this test and if these tests should be thrown out in their promotions --
Potter Stewart: No, no, it does -- well, at the -- not this unit of the Union which is only the Monroe Plant, isn't it?
Norton J. Come: Well, it does represent the Monroe Plant.
Potter Stewart: Yes, but and only --
Norton J. Come: And --
Potter Stewart: -- and then all the people who got these jobs were from other plants.
Norton J. Come: But when they came into this bargaining unit, they'd be represented by this unit -- Union. The Union must represent fairly all the employees in the bargaining unit.
William H. Rehnquist: Well, into the extent that the arbitrator throws out the company's decision to promote some who did well on the test scores, they too are Union members, are they not?
Norton J. Come: That is correct.
Harry A. Blackmun: Mr. Come, can you clarify something for me please? Earlier in your argument, I understood you to say that as an example of why the Union wanted these tests that it might be able to prove that one of the applicants for this Instrument Man B had performed that identical function or a function very similar to it somewhere else very efficiently. If that is so, in what way would a test assist the Union? Why can't it prove that any way without having possession of the test and the scores?
Norton J. Come: Well, I think that test would assist it in this sense. You start with the fact that the test do have a statistical validity.
Harry A. Blackmun: Well let's assume that --
Norton J. Come: And I think that the Union rather than just willy-nilly attempting to show that the employee was capable of doing the job wanted also to see what were the types of questions that he missed on the test. Now if you could show that Smith with a good record missed the kind of questions that I was using for illustration purposes, but did very well on all the mathematical and physical science questions that were more germane to the Instrument Man job, it would have a better case before the arbitrator than if it merely had a situation where it could've been that the reason that Smith did poorly was because he missed the mathematical questions and the physical science questions. I think that the types of questions that the employee missed would be very relevant and -- to the Union and helpful to it in prosecuting or persuading the arbitrator that notwithstanding the showing on the test the employee (Voice Overlap) --
Harry A. Blackmun: But if Smith had been an Instrument Man B in another utility plant and had received the highest rating for his performance and let's assume further that he was the lowest man on this test scores, I don't understand how it would make any difference in the Union's effort to prove that he was confident to do the job head and shoulders above anybody else because it already proved it.
Norton J. Come: Now, these men were not instrument -- formerly Instrument Men so you had to take analogous job skills and in making that showing, I submit that where he failed on or -- on the test would be helpful in that regard.
Warren E. Burger: Your time has expired Mr. Come. Thank you. Mr. McGuinn, do you have anything further?
John A. McGuinn: Yes Your Honor. I do want to answer the contention made that we somehow lost our right to challenge the relevance of these materials by the lack of file and exception to the finding of relevance in the Board proceeding. Mr. Come is factually correct. No exception was filed to the -- that portion of the decision of the administrative law judge. The reason that no exception was filed was the obvious one that the administrative law judge had adopted a recommendation made by the company at the outset of the unfair labor practice hearing. The company did this expressly “to appease the Union” not as a confession of relevance of the materials. What earthly reason would the company have for filing an exception to that portion of a decision it deemed favorable to its own interest. Filing an exception in those circumstances in my opinion would have been an indication of bad faith, a withdrawal from a proposal that we made to the Union at the outset of the hearing. I think it's most important in this context to remember that this is a labor relations case and that in labor relations, each party often makes concessions to the other in order to appease them. That's how this system works.
John Paul Stevens: Mr. --
John A. McGuinn: And I think --
John Paul Stevens: -- McGuinn.
John A. McGuinn: Yes.
John Paul Stevens: Let me go back for a second, why couldn't he -- you made an offer and they turned it down.Why can't you withdraw it later?
John A. McGuinn: Because I think that we made an offer to the administrative law judge as well as to the Union.
John Paul Stevens: Right.
John A. McGuinn: And the administrative law judge was a part of this process too and I just think it would be undercutting the commitment if you will, that we gave to the administrative law judge that this is something that we could live with.
John Paul Stevens: I don't understand why? You just say, although we -- you say, we're happy with the result. We want to preserve our record. In case we lose, we'll -- we take an exception.
John A. McGuinn: Well, I think that's --
John Paul Stevens: Was that done all the time?
John A. McGuinn: -- taking a very technical and mechanistic --
John Paul Stevens: Yes, but it would --
John A. McGuinn: -- approach to some --
John Paul Stevens: -- preserve your argument here today if you've done that, wouldn't it?
John A. McGuinn: I think the argument is preserved here today.
John Paul Stevens: That would have been unambiguously preserved without necessarily raffling its feelings in it, wouldn't they?
John A. McGuinn: Well I just think it would be a most unfortunate result for industrial relations generally. If efforts made by one party to appease the other party were later translated into a finesse of the appeaser's legal rights and that's what I think has happened here.
William H. Rehnquist: Well, 10 (e) certainly provides that you can lose your legal rights in certain circumstances, doesn't it?
John A. McGuinn: It does Your Honor. I'm not arguing with that. I'm telling you this is a labor relations case and some considerations not to be given to that fact when you --
William H. Rehnquist: Well I thought 10 (e) was in the National Labor Relations Act which dealt with labor relations case.
John A. McGuinn: Well, that is correct. That is correct. But I am attempting to sensitize you to the fact that in labor relations, sometimes we make concessions to appease another party. And I don't think that we ought to be penalized for making concessions like that.
William H. Rehnquist: You're not bound by the statute the same way people in other branches of the law are?
John A. McGuinn: No, we are bound by the statute. We are bound by the statute. If there are no other questions, I will rest.
Warren E. Burger: Thank you gentlemen. The case is submitted.