The President and Fellows of Harvard College (Harvard University) were found to have violated federal labor law by refusing to provide a police union with an internal investigative report concerning a bargaining unit employee.
The dispute arose after Harvard retained an outside consultant, the Edward Davis Company, to investigate aspects of a campus police detective’s handling of a student sexual assault investigation, including the interaction between the detective and her supervisors. The consultant prepared a written report (the “Davis Report”) summarizing its findings and provided it to Harvard.
All University-employed police officers were represented by the Harvard University Police Association. After the Davis Company interviewed the detective, the Union requested a copy of the Davis Report, explaining that it was necessary to protect the detective’s rights, to evaluate whether supervisors had improperly criticized her performance, and to determine whether the Union should pursue a grievance under the parties’ collective bargaining agreement. The Union offered to accept redactions of identifying student information and proposed entering into a confidentiality agreement to limit dissemination of the report.
Harvard did not respond to the initial request and later refused to produce the report, asserting that it was a confidential internal document not provided to employees. Harvard maintained that the report was not relevant to the Union’s representational duties and that confidentiality concerns outweighed any obligation to disclose it. Harvard did not offer an alternative accommodation or provide a redacted version of the report. At the time of the Union’s renewed requests, the detective had an internal sex discrimination complaint pending with the University’s Office of Dispute Resolution, and the Union sought to use the report in that process and in deciding whether to file a grievance.
After the Union filed an unfair labor practice charge, the NLRB’s General Counsel issued a complaint alleging that Harvard violated Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act by refusing to provide relevant information. Following a hearing, the Administrative Law Judge agreed with the General Counsel.
The ALJ held that the Davis Report was presumptively relevant because it concerned the performance and supervision of a bargaining unit employee. Even aside from presumptive relevance, the ALJ found the report demonstrably relevant to the Union’s duties, including evaluating a potential grievance and assisting the employee in an ongoing discrimination complaint. The ALJ rejected Harvard’s argument that the report was irrelevant because it was not part of the Office of Dispute Resolution’s file, noting that the Union sought the report precisely so it could be submitted and considered.
The ALJ also rejected Harvard’s confidentiality defense. The ALJ found that Harvard failed to establish any legitimate and substantial confidentiality interest, emphasizing that the University official who denied the request admitted he had never read the report and that Harvard did not present testimony from anyone who had reviewed it. Harvard also did not submit the report for in camera review. Even assuming the report contained confidential student information, the ALJ found that the Union’s proposed accommodations to redact identifying information and to sign a confidentiality agreement were reasonable and that Harvard forfeited its confidentiality defense by refusing to engage in accommodative bargaining.
The ALJ concluded that Harvard unlawfully refused to provide the Davis Report and ordered the University to furnish it to the Union and post a remedial notice. The remedy applied even though the detective had since resigned, because her internal complaint remained pending and the report could still affect her interests and those of other bargaining unit employees.
President and Fellows of Harvard College (Harvard University), JD–95–25 (NLRB ALJ Dec. 23, 2025).
Note: This decision underscores that independent schools with unionized staff have a broad obligation to provide unions with information that is relevant to representational duties, even when the information is contained in confidential investigative reports.