Detroit Edison Co. v. National Labor Relations Board

440 U.S. 301
Brief(s) Filed: 3/76 and 9/77
Courts: Sixth Circuit; Supreme Court of the United States
Year(s) of Decision(s): 1977 (6th Cir.); 1979 (U.S. Supreme Court)

Read the full-text amicus brief (PDF, 304KB)


Whether an order of the National Labor Relations Board that required Detroit Edison to provide a union with copies of an actual test battery and employees' raw scores and test papers without their consent should be enforced in light of confidentiality and test security concerns

Index Topics

Confidentiality/Psychotherapist-Patient Privilege; Tests (Use, Validity, & Security of Psychological Tests & Test Data)


Detroit Edison had several vacancies at a new power plant. It required that the job applicants take a battery of psychological aptitude tests given by psychologists who administered the employment tests with the express agreement that performance interpretations alone and not the actual test scores would be shown to company management or the union. None of the 10 employees from the unit who applied obtained the required score on the tests and employees from other units with less seniority who had scored above the cut-off were promoted. The union filed a collective bargaining grievance claiming the testing procedure was unfair and requesting that Detroit Edison provide it with the test battery and the employees' raw data and answer sheets without their consent. An administrative law judge determined that the test batteries should be turned over to an Industrial-Organizational (I-O) psychologist selected by the union and the raw test scores disclosed to the union. The NLRB subsequently ordered that the raw data and test results be turned over to the union directly. On appeal, APA filed an amicus brief emphasizing consideration of Principles 13 and 14 of the Ethical Standards of Psychologists, which relate to the handling of test data and the protection of privacy. The Sixth Circuit agreed with the NLRB finding that the information sought was necessary and appropriate for the union to have access to in order to carry out its statutory duty as the bargaining representative of the employees. The case was appealed to the U.S. Supreme Court.

APA's position

APA's amicus brief argued that: (1) fundamental interests of employees and psychologists — such as the employee's interests in privacy and in a confidential relationship with the psychologist and the psychologist's interest in not violating the professional code of ethics — would be ignored by unlimited disclosure to the union of psychological test scores and test papers linked with the names of those tested; and (2) disclosure to the union of psychological aptitude tests would destroy the validity of the tests and result in the elimination of objective and nondiscriminatory employee selection procedures.


The U.S. Supreme Court held that the NLRB abused its remedial discretion in ordering Detroit Edison to turn over test battery and answer sheets because Detroit Edison's interest in test secrecy, specifically the relationship between secrecy and test validity, was abundantly demonstrated. Furthermore, the action taken by the NLRB, barring the union from taking any action that might cause the tests to fall into the hands of employees who have taken or are likely to take them, did not adequately protect the security of the tests. There was substantial doubt whether the union, which was not a party to the enforcement proceeding, would be subject to a contempt citation were it to ignore the restrictions. Moreover, the union clearly would not be accountable in either contempt or unfair labor practice proceedings for the most realistic vice inherent in the Board's remedy — the danger of inadvertent leaks. On the issue of confidentiality, the Court held that Detroit Edison's willingness to disclose test scores linked with employee names only upon receipt of consent from examinees satisfied Detroit Edison's statutory obligations. The Court wrote that, in light of the sensitive nature of testing information, the minimal burden that compliance with petitioner's offer would have placed on the union, and the total absence of evidence that Detroit Edison had fabricated concern for employee confidentiality only to frustrate the union in the discharge of its responsibilities, the Board's conclusion that Detroit Edison's resistance to disclosure of individual test results without consent violated the statutory obligation to bargain in good faith could not be sustained.