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NLRB decision involving Harvard highlights tension between union rights and workplace investigation confidentiality

2/23/26

By: Sunshine Fellows

A recent decision from the National Labor Relations Board involving Harvard University serves as a reminder that employers conducting sensitive workplace investigations, particularly those implicating harassment or discrimination concerns, must carefully navigate overlapping obligations under federal labor and employment laws. While the ruling arose under the National Labor Relations Act, the Board’s reasoning underscores potential friction with confidentiality considerations that frequently arise in matters governed by Title VII.

Factual Background

The dispute stemmed from a workplace investigation involving members of Harvard’s campus police department. After the University completed an internal investigation into alleged misconduct, disciplinary action was imposed against a bargaining-unit employee. The union representing Harvard’s police officers, the Harvard University Police Association, requested access to the investigative report and related materials, asserting that the information was necessary to evaluate the discipline and determine whether to pursue a grievance.

Harvard declined to provide the requested materials in full, citing concerns about confidentiality and the sensitive nature of the underlying allegations. The union then filed an unfair labor practice charge, alleging that Harvard’s refusal interfered with the union’s statutory right to relevant information needed to fulfill its representational duties.

What the Board Found

An NLRB administrative law judge concluded that Harvard violated the NLRA by failing to provide information that was presumptively relevant to the union’s role in representing the disciplined employee. The decision emphasized that, under long-standing Board precedent, employers generally must furnish investigative materials when they are reasonably necessary for a union to assess discipline or potential grievances.

Importantly, the Board rejected Harvard’s argument that confidentiality concerns, standing alone, justified withholding the information. While acknowledging that investigations involving alleged misconduct can raise legitimate privacy and sensitivity issues, the decision noted that employers bear the burden of demonstrating a concrete and substantial confidentiality interest. According to the Board, generalized concerns, without a showing of specific risk, are insufficient to override the union’s information rights. The Board further indicated that accommodations such as redactions, confidentiality agreements, or limited disclosures may be appropriate alternatives to outright refusal.

Why This Matters Beyond the NLRA

Although the decision was grounded in labor law, its implications extend beyond traditional union-management disputes. Workplace investigations involving allegations of harassment, discrimination, or retaliation often implicate Title VII obligations, including duties to conduct prompt, thorough, and fair investigations while protecting complainants and witnesses from retaliation. The Harvard decision highlights the practical tension employers may face when union information requests intersect with those investigative responsibilities.

Employer Takeaways

Employers, particularly those with unionized workforces, should consider the following lessons from this decision:

• Assume relevance in discipline cases: When discipline is imposed on a bargaining-unit employee, investigative materials will often be deemed relevant to the union’s representational role.
• Confidentiality requires specificity: Generalized concerns about privacy or sensitivity are unlikely to justify withholding information entirely. Employers should be prepared to articulate concrete risks tied to disclosure.
• Consider tailored disclosures: Redactions, confidentiality agreements, or limited-scope production may help balance union rights with the need to protect sensitive information.
• Coordinate labor and employment strategies: Decisions about investigation confidentiality should be made with both NLRA and Title VII considerations in mind, ideally with counsel involved early.
• Document the analysis: Maintaining a clear record of why certain information was withheld or modified can be critical if the decision is later challenged.

As enforcement priorities continue to evolve, this decision serves as a timely reminder that employers must take a holistic approach to compliance, particularly when labor-law obligations intersect with workplace investigations involving discrimination or harassment allegations.

For more information, please contact Sunshine Fellows at sunshine.fellows@fmglaw.com or your local FMG attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.