🗞️ NLRB Tells Harvard: Handing Over the Report Isn't Optional

The National Labor Relations Board has ordered Harvard University to turn over an outside investigator's report to the union representing its campus police officers, closing out a dispute that stretched back more than a year and a half. In a decision issued July 23, 2026, the Board affirmed an administrative law judge's finding that the university violated federal labor law by refusing to produce the document, known as the Davis Report, to the Harvard University Police Association.

The case traces back to a disagreement over how Harvard University Police Department Detective Kelsey Whelihan and her supervisors handled the investigation of a reported sexual assault involving students. According to The Harvard Crimson, the dispute grew out of a disagreement between Whelihan and a superior officer over that handling. The university then hired the Edward Davis Company, a private security firm, to review the matter internally. When the union asked for a copy of the resulting report starting in January 2024, Harvard repeatedly declined, describing it only as confidential.

The union pressed its case, noting that Whelihan had separately filed an internal complaint accusing her supervisors of sex discrimination, and that the union was weighing whether to file its own grievance under the collective bargaining agreement. The NLRB found the report was presumptively relevant to those efforts simply because it concerned a bargaining unit member's job performance and how she was supervised.

Harvard's confidentiality defense unraveled at the hearing stage. As one legal analysis of the case noted, the university's designated witness, Zachary See, acknowledged under questioning that he had never actually read the report he was calling extremely confidential, and no other Harvard official offered testimony that they had read it either. Applying the longstanding confidentiality balancing framework tied to Detroit Edison Co. v. NLRB, the judge and the Board both concluded Harvard never established a genuine confidentiality interest, and even if it had, it made no attempt to negotiate accommodations the union had offered, such as redacting the names of the student victim and accused student.

A settlement offer made roughly two weeks before the September 2025 hearing, covering only the report's recommendations section, did not resolve the matter either. The union declined it, and the judge's decision, later affirmed by the Board, characterized the offer as both untimely and too narrow to address the union's stated needs.

Harvard must now provide the union with the report, subject to permitted redactions of identifying details, and post a notice to employees acknowledging the violation.

Key Points

• The NLRB affirmed that Harvard violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to furnish the Union with the Davis Report after an October 31, 2024 request.
• The report was deemed presumptively relevant because it involved a bargaining unit employee's job performance and supervisory conduct.
• Harvard's confidentiality claim failed because its own witness admitted he never read the report, and the university never proposed any accommodation in response to the union's offer to redact identifying information.
• The Board modified the remedy to specify Harvard may redact personal identifying information about the alleged victim and the accused student when producing the report.
• Harvard must post a remedial notice for 60 days and certify compliance with NLRB Region 1 within 21 days.

Sources

Primary Source Author: National Labor Relations Board (Chairman James R. Murphy and Members David M. Prouty and Scott A. Mayer), adopting the decision of Administrative Law Judge Paul Bogas

Primary Source: President and Fellows of Harvard College (Harvard University) and Harvard University Police Association, 375 NLRB No. 5, Case 01-CA-354044

Primary Source Link: www.nlrb.gov/case/01-CA-354044

Supplemental Links:

• The Harvard Crimson: NLRB Finds Harvard Violated Federal Labor Law in Dispute with Police Union
• The Harvard Crimson: Harvard Police Union Accuses University of Withholding Information
• On the Labor Front: NLRB to Harvard, You Can't Claim Confidentiality Without Reading the Report
• NLRB Edge: Still Illegal to Terminate Someone for Talking About Wages
• Law360 Employment Authority: Harvard NLRB Ruling Highlights NLRA, Title VII Conflicts
• JD Supra: NLRB Decision Involving Harvard Highlights Tension Between Union Rights and Workplace Investigation Confidentiality