dissenting.
The Order of the Board, which the Court enforces, protects only the interest of the union, and does not recognize, or even consider, the conflicting interests of the employer, Detroit Edison. The Board’s Order destroys the value for future use of psychological tests which Detroit Edison had validated at great expense, by requiring it to turn over to the union the battery of tests, including the test papers. These test papers were in the custody of qualified psychologists employed by the company (employer), to which papers even company management had no access, and the disclosure of such papers would violate the Code of Ethics of the American Psychological Association which has been recognized by the statutes of the state of Michigan, M.C.L.A. § 338.1001(b); Mich.Stat.Ann. § 14-677(1)(b).
The Board’s Order also required the company to turn over to the union the test scores of each employee who had taken the tests and link to his name his test score, notwithstanding the fact that the psychologists had assured each examinee that such score would be kept confidential and would not be disclosed to anyone without his written consent thereto. None of the examinees had given such consent. A confidential and privileged relationship thus existed between the psychologists who gave the tests and the examinees.
The disclosure of the test papers, as well as the individual scores, would subject the psychologists to the sanctions of disciplinary action which could result in their suspension or even revocation of their licenses by the state of Michigan.
Detroit Edison did, however, furnish to the union a wealth of material, which included: The company’s 1970 validation report of the tests; the 1972 National Compliance Company validation report; Explanations of the battery of tests given; Representative sample questions from the batteries; the test scores of all of the applicants, but without revealing which examinee received the score.
The company further offered to divulge to the union the name and test score of any examinee who consented thereto, but the union declined to request such consent from any of its members.
The company further offered to permit the union’s representative, Mr. Clem Lewis, to take the tests.
The company further offered to turn over to a qualified psychologist selected and employed by the union, all of the withheld material which the union requested. This would have afforded at least some protection to the company, as the union’s psychologist would have been bound by the same ethical code as that binding the company’s psychologists, but the union even refused to accept this offer.
The Administrative Law Judge did enter a partial protective order which did protect the battery of tests but not the test papers or the names and scores of the examinees who took the tests. This order was as follows:
[T]hat the purposes of the Act will best be effectuated if Respondent be directed to supply copies of the battery of tests administered to the employee applicants for the position of Instrument Man B in this proceeding, including the actual test papers of the applicants (necessary to *728check the accuracy of the scoring of the tests), only to a qualified psychologist selected by the Union to act in its behalf in this matter, such submission to be made within 10 days after Respondent receives notification of the individual selected. The psychologist shall be free to fully advise the Union concerning these tests, so that the Union may fully protect the rights of the employees in the appropriate unit; the Union shall have the right to see and study the tests, and to use the tests and the information contained therein to the extent necessary to process and arbitrate the grievances, but not to copy the tests, or otherwise use them, for the purpose of disclosing the tests or the questions to employees who have in the past, or who may in the future take these tests, or to anyone (other than the arbitrator) who may advise the employees of the contents of the tests. After the conclusion of the arbitration proceeding, or if no request is made to reopen the arbitration hearing within 90 days after the psychologist receives the battery of tests, all copies of the battery of tests shall be returned to Respondent. See Fawcett Printing Corp., 201 NLRB 964. (A. 38)
The company filed exceptions only to that portion of the protective order which required the company to turn over to the union the raw test scores, identified by the name of the employee, and the test papers of the applicants.
The material which the company did furnish to the union was, in my judgment, sufficient to permit the union to process adequately the grievance pending before the Arbitrator, or to perform its duties under the collective bargaining agreement. The furnishing of all of the papers requested by the union would have required the assistance of a psychologist to evaluate these papers for the union, and the company was willing to turn over all papers to the union’s psychologist, but the union declined to accept such offer. These papers simply could not have been evaluated by a lay person.
This, in my judgment, implies that the union did not wish to be bound by any ethical considerations, but wanted to be free to use the test papers for any purpose it desired. , '
But even the partial protective order of the Administrative Law Judge, which order was little enough, did not satisfy the Board. The Board reversed the partial protective order and ordered that the company turn over all of the material requested, but imposed upon the union the same conditions as those which the Administrative Law Judge imposed on the psychologist. This was really naive. Member Kennedy dissented, stating:
The majority’s modifications of the remedy recommended by the Administrative Law Judge are not justified. There is no professional obligation on the part of the union not to publicize the tests or their results. I do not see how this Board can enforce its exhortation not to copy or to disclose the tests.
Detroit Edison was vitally concerned in securing qualified applicants for a critical position. Its testing program has been nullified by the action of the Board. In a case where the union had requested information which was too broad and covered many facets of managerial concern, we stated in an opinion written for the Court, by Judge Edwards, in Kroger Co. v. NLRB, 399 F.2d 455, 457 (6th Cir. 1968):
To us the critical problem appears to be how to recognize and how adequately to protect each of the conflicting- interests that are involved here.
These interests include the company, the examinee, and the psychologists. In Kroger we set aside the Board’s order and denied enforcement.
Since the Board did not follow the criteria of Kroger, but recognized and .enforced only the interest of the labor union, its order constituted a gross abuse of discretion and it ought not to be enforced.