🗞️ NLRB to Harvard: You Can't Claim Confidentiality Without Reading the Report

On December 23, 2025, NLRB Administrative Law Judge Paul Bogas issued a decision finding that Harvard University violated the National Labor Relations Act by withholding an investigative report from the Harvard University Police Association. The case arose when Detective Kelsey Whelihan was investigated by the Edward Davis Company regarding her handling of a student sexual assault investigation. The union requested the Davis Report to support Whelihan's pending sex discrimination complaint against her supervisors and to evaluate potential grievances.

Harvard repeatedly refused the union's requests (made in January, March, and October 2024), claiming the report was "extremely confidential." While the legal violation found was specifically for Harvard's refusal to provide the report following the October 31, 2024 request, the judge's decision noted the university's pattern of non-response and refusals dating back to January. The university official denying the request admitted he had never read the report and provided no evidence establishing actual confidentiality concerns. The union proposed reasonable accommodations, including redacting student identifying information and limiting distribution through confidentiality agreements, but Harvard never responded to these proposals.

Judge Bogas found the report was presumptively relevant because it concerned a bargaining unit employee's performance and supervisor conduct. The decision applied confidentiality principles from the Detroit Edison balancing test (through NLRB cases citing that precedent), which requires employers asserting confidentiality to: (1) prove a legitimate and substantial confidentiality interest, (2) demonstrate that interest outweighs the union's need, and (3) seek reasonable accommodations rather than flatly refusing disclosure.

Harvard failed all three requirements. The employer presented no evidence of legitimate confidentiality concerns, made no effort to balance competing interests, and never engaged in accommodation discussions despite the union's multiple proposals. The judge ordered Harvard to immediately provide the report and post notices informing employees of their rights.

This decision reinforces critical principles from NLRB v. Acme Industrial Co. (1967), which established that good-faith bargaining includes providing information relevant to union representational duties. The case also demonstrates that confidentiality cannot be a "naked claim"—employers must provide actual evidence and must negotiate accommodations even when legitimate privacy interests exist.

The ruling is particularly significant because it involved a university setting with potential student privacy concerns, yet the judge found that even in such contexts, employers cannot use unsupported confidentiality claims to circumvent their statutory obligations. The case also highlights that information relevant to discrimination complaints and grievance evaluation is essential to union representation, a principle dating back to the Supreme Court's recognition that unions must have access to information needed to "decide whether to process a grievance" (Acme Industrial, 385 U.S. at 437-438).

Key Points

• Violation Found: Harvard violated Section 8(a)(5) and (1) of the NLRA by refusing to provide the Edward Davis Company investigative report to the union
• Presumptive Relevance: Information concerning bargaining unit employees' performance and supervisor conduct is presumptively relevant to union duties
• Failed Confidentiality Defense: Employer must prove legitimate confidentiality interests with actual evidence, not mere assertions; the official who denied the request had never read the report
• Accommodation Requirement: Employers cannot flatly refuse information requests based on confidentiality but must seek reasonable accommodations with the union
• Union's Proposed Solutions Ignored: Harvard never responded to union's offers to redact student information and accept confidentiality agreements
• Remedy Ordered: Immediate production of the report and posting of notices to employees
• Broader Principle: Even when legitimate confidentiality concerns exist, they must be balanced against union's representational needs, and employers must negotiate in good faith
• Timing Issues: The violation found was for Harvard's refusal to provide information following the October 31, 2024 request; the university never engaged in accommodation discussions despite the union's multiple proposals dating back to January 2024

Primary Author: Paul Bogas, Administrative Law Judge

Primary Source: JD-95-25, President and Fellows of Harvard College (Harvard University), Case 01-CA-354044, National Labor Relations Board Division of Judges (December 23, 2025)

Primary Source Link: NLRB Case 01-CA-354044

Supplemental Links

• Harvard Police Union Accuses University of Withholding Information - The Harvard Crimson
• Harvard Should Allow Union Access To Report, NLRB Says - Law360
• With Clay's Exit, Harvard's Police Department Is Left Fractured - The Harvard Crimson
• Are You Required to Provide Confidential Information to Your Union? - Parsons Behle
• NLRB Limits Confidentiality in Workplace Investigations - National Law Review
• Reconciling Unions' Right to Request Information with FERPA Student Privacy Law - NLRB Edge
• Labor Relations Bulletin - Requests for Information - NECA
• NLRB: Unions Also Obligated To Provide Timely Relevant Information - National Law Review