Federal Management Regulation; Soliciting Union Memberships Among Contractors in GSA-Controlled Buildings, 54166-54170 [2022-17949]

Agencies

• General Services Administration

[Federal Register Volume 87, Number 170 (Friday, September 2, 2022)]
[Rules and Regulations]
[Pages 54166-54170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17949]


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GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-74

[FMR Case 2022-02; Docket No. GSA-FMR-2022-0011, Sequence No. 1]
RIN 3090-AK54


Federal Management Regulation; Soliciting Union Memberships Among 
Contractors in GSA-Controlled Buildings

AGENCY: Office of Government-wide Policy (OGP), General Services 
Administration (GSA).

ACTION: Final rule.

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SUMMARY: GSA is issuing a final rule amending the Federal Management 
Regulation (FMR) to revise the soliciting, vending, and debt collection 
policy. The rule will update policies consistent with the White House 
Task Force on Worker Organizing and Empowerment recommendations to 
revise the FMR. This rule will clarify that activities related to 
worker organizing and collective bargaining among contractors' 
employees working in Federal Government facilities are not covered or 
restricted by the general prohibition on soliciting, posting and 
distributing materials in or on Federal property under the 
jurisdiction, custody or control of GSA (GSA-controlled property).

[[Page 54167]]


DATES: 
    Effective date: This rule is effective September 2, 2022.
    Comment date: Interested parties should submit written comments on 
or before November 1, 2022 to be considered in future rulemaking.

ADDRESSES: Submit comments in response to FMR case 2022-02 to: 
Regulations.gov at https://www.regulations.gov. Submit comments via the 
Federal eRulemaking portal by searching for ``FMR Case 2022-02.'' 
Select the link ``Comment Now'' that corresponds with FMR Case 2022-02. 
Follow the instructions provided at the ``Comment Now'' screen. Please 
include your name, company name (if any), and ``FMR Case 2022-02'' on 
your attached document. If your comment cannot be submitted using 
https://www.regulations.gov, call or email the points of contact in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: Please submit comments only and cite FMR Case 2022-
02, in all correspondence related to this case.
    Comments received generally will be posted without change to 
https://www.regulations.gov, including any personal and/or business 
confidential information provided. To confirm receipt of your 
comment(s), please check https://www.regulations.gov, approximately two 
to three days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT: Mr. Chris Coneeney, Real Property 
Policy Director, at 202-208-2956, or at [email protected] for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FMR Case 2022-02.

SUPPLEMENTARY INFORMATION:

I. Background

    GSA is issuing a final rule with a 60-day comment period amending 
the Federal Management Regulation (FMR) to update certain provisions 
regarding Facility Management. These revisions will enable access to 
property under the direct custody and control of GSA, or property for 
which Federal agencies are acting under a delegation of authority from 
GSA, for union organizers with the intent to educate employees of 
private sector contractors working in these Federal Government 
facilities about the benefits of organizing, collective bargaining and 
union membership.
    In 1935, in the middle of the Great Depression, Congress enacted 
the National Labor Relations Act, as amended, 29 U.S.C. 151-169 (NLRA), 
to protect the rights of workers to organize into trade unions and 
engage in collective bargaining and collective action. The NLRA was a 
landmark piece of legislation that sought to correct the ``inequality 
of bargaining power between employees . . . and employers . . .'' (29 
U.S.C. 151) and promoted collective bargaining between trade unions on 
behalf of their members and the business entities that employed them.
    In the decades that followed, Congress also enacted reforms to 
civil service, as the government grew in size and complexity. These 
efforts resulted in the Civil Service Reform Act of 1978, as amended, 
Public Law 95-454 (October 13, 1978), 5 U.S.C. 1101 et seq. (CSRA), the 
most comprehensive civil service legislation in almost a century. These 
reforms included the Federal Service Labor-Management Relations 
Statute, which allowed Federal employees to form unions and engage in 
collective bargaining regarding personnel practices. Among many other 
provisions, this statute required Federal agencies to allow union 
organizers access to Federal property for the purpose of conducting 
union business, such as organizing, holding regular meetings and 
dispute settlement.
    On April 26, 2021, President Biden issued Executive Order (E.O.) 
14025, titled ``Worker Organizing and Empowerment'' (available at 86 FR 
22829 (April 29, 2021); https://www.whitehouse.gov/briefing-room/presidential-actions/2021/06/25/executive-order-on-diversity-equity-inclusion-and-accessibility-in-the-federal-workforce/), section 2 of 
which established a White House Task Force on Worker Organizing and 
Empowerment (Task Force) to identify executive branch policies, 
practices and programs that could be used, consistent with applicable 
law, to promote the Administration's policy of empowering workers to 
organize and successfully bargain with their employers. The Task Force 
recommended that GSA, in consultation with the Office of Management and 
Budget (OMB), consider revising the FMR to allow that worker organizing 
and collective bargaining among employees of contractors working in 
Federal Government facilities are not covered or restricted by the 
general prohibition on soliciting, posting and distributing materials 
in GSA-controlled property. These recommendations are available at 
https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/2022/02/OSEC20220195.pdf on page 20.
    GSA, in consultation with OMB, is updating the FMR on soliciting, 
vending and debt collection consistent with the Task Force 
recommendation. Specifically, GSA is updating the FMR to address the 
recommendation to include an exception to the prohibition on 
soliciting, posting or distributing materials, or seeking donations, on 
GSA-controlled property. The FMR currently contains a general 
prohibition on the activities of soliciting and posting and 
distributing materials on GSA-controlled property at 41 CFR 102-74.410 
and 102-74.415, respectively. This prohibition only covers activities 
and does not set forth any restrictions or exemptions regarding the 
individuals performing those activities. The existing regulation 
provides six exceptions to the general prohibition in 41 CFR 102-74.410 
concerning soliciting, vending and debt collection in or on Federal 
property, including one for the solicitation of labor organization 
membership or dues authorized by occupant agencies under the CSRA. This 
exception authorizes union organizer access to Federal employees 
working in GSA-controlled property to educate Federal employees who 
either wish to organize or are already members of a union.
    Requests by union organizers to meet with Federal contractor 
employees in space occupied by the legislative or judicial branches are 
beyond the scope of the order because executive orders do not apply to 
the legislative or judicial branches of the Federal Government.
    This final rule will enable labor organizations who represent 
contractors working in Federal Government facilities to access Federal 
property to educate Federal contractors about the benefits of 
organizing, collective bargaining and union membership. If a security 
clearance is required for access to the Federal property, labor 
organizations will still have to follow the normal process of gaining 
access. This final rule also furthers the goals of E.O. 14035, 
``Diversity, Equity, Inclusion, and Accessibility in the Federal 
Workforce.'' This E.O. reflects the goal of ``cultivat[ing] a workforce 
that draws from the full diversity of the Nation,'' and directs 
agencies to identify strategies to promote diversity and equity while 
removing barriers to inclusion and success for employees in 
marginalized groups. Unions can provide greater protection for 
employees in marginalized groups as they advocate for employees and 
allow for collective bargaining on behalf of marginalized employees who 
may not otherwise be comfortable with or able to do so on their own.

[[Page 54168]]

II. Discussion of the Final Rule

A. Summary of Change

    This final rule amends 41 CFR part 102-74 by adding a new paragraph 
to Sec.  102-74.410. The section outlines the ban on soliciting 
contributions, vending goods, advertising, and debt collection on 
Federal property. The current FMR already provides an exception for 
union organizing activities for Federal employees; however, this rule 
will add union organizing activities for labor organizations 
representing or seeking to represent contractors working in GSA-
controlled property to the list of authorized exceptions to the general 
prohibition. The addition of this new exception does not in and of 
itself create a direct employment relationship with the Federal 
Government nor does it replace or prohibit the implementation of 
current or future Federal agency or contractor policies regarding 
access to Federal property or the regulation of conduct in or on 
Federal property.

B. Expected Costs and Benefits

    GSA has conducted an economic analysis of the proposed change and 
determined that the total predicted monetary costs to the Government 
and to the private sector are $1,334,937 over the next 10 years. (For a 
full breakdown of compliance costs, see section VI of this rule.) The 
benefit to the Federal agencies and Federal contractors may include no 
loss of productivity due to workers taking leave to attend labor 
organization or collective bargaining presentations or unscheduled 
meetings. Federal contractors' employees will also benefit from having 
easier access to union organizers and better opportunities for 
collective bargaining.

III. Request for Public Comment

    In addition to the changes discussed with this final rule, GSA 
requests public comments to better understand how the agency can 
promote the goals articulated in E.O. 14025, as well as providing 
opportunities for all employees to learn about and access unions should 
they deem it beneficial. These comments will inform possible policy 
formation in the future, as well as future Task Force projects.

IV. Administrative Procedure Act

    This rulemaking is exempt from the advance notice-and-comment and 
delayed-effective-date requirements of the Administrative Procedure Act 
pursuant to 5 U.S.C. 553(a)(2) because this rulemaking relates to 
agency management or personnel or to public property, loans, grants, 
benefits, or contracts. This rulemaking relates to both GSA's agency 
management and public property, as it involves the internal process of 
managing conduct on public property by GSA and Federal agencies acting 
under a delegation of authority from GSA.

V. Executive Orders 12866 and 13563

    E.O.s 12866 and 13563 direct agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits of reducing costs, 
harmonizing rules and promoting flexibility. OMB's Office of 
Information and Regulatory Affairs has determined that this is a 
significant regulatory action and, therefore, was subject to review 
under section 6(b) of E.O. 12866, ``Regulatory Planning and Review,'' 
dated September 30, 1993.

VI. Congressional Review Act

    The OMB Office of Information and Regulatory Affairs has determined 
that this rule is not a ``major rule'' as defined by 5 U.S.C. 804(2). 
Additionally, this rule is excepted from Congressional Review Act 
reporting requirements prescribed under 5 U.S.C. 801 since it relates 
to agency management or personnel under 5 U.S.C. 804(3).

VII. Regulatory Flexibility Act

    This final rule will not have a significant economic impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it applies to 
agency management or personnel. Therefore, an initial regulatory 
flexibility analysis has not been performed. GSA invites comments from 
small business concerns and other interested parties on the expected 
impact of this rule on small entities.
    GSA will also consider comments from small entities and other 
interested parties concerning the existing regulations in subparts 
affected by the rule in accordance with 5 U.S.C. 610. Interested 
parties must submit such comments separately and should cite 5 U.S.C. 
610 (FMR Case 2022-02) in correspondence.
    GSA determined, based on an economic model, that there will be 
compliance costs associated with the new rule. For the model, GSA 
assumed that compliance activities would need to take place in 
federally owned and leased buildings and buildings under construction. 
Compliance activities would consist of developing guidance around 
providing union organizer access to Federal facilities where employees 
of private sector contractors are working and distributing that 
guidance to building managers for their review. Below is a list of 
activities related to regulatory familiarization that GSA anticipates 
will occur.

A. Government Costs

1. Federally Owned Buildings
    GSA calculates it will take 8 GSA employees, on average with a GS-
14, step 5, with an average hourly rate of $76.29/hour, 30 hours each 
in the first year to develop guidance informing the owned building 
community of the changes to union organizer access to Federal property. 
Therefore, GSA calculated the total estimated cost for this part of the 
rule to be $18,310 (= 8 x $76.29 [GS-14, step 5 rate] x 30 hours).
    Based on recent experience, GSA estimates that the guidance 
document will be updated about once every 10 years and the updated 
guidance will be redistributed to appropriate individuals. GSA 
calculates it will take 8 GSA employees, on average with a GS-14, step 
5, with an average hourly rate of $76.29/hour, 5 hours each once every 
10 years to develop updates to the guidance informing the owned 
building community of the changes to union organizer access to Federal 
property. Therefore, GSA calculated the total annual estimated cost for 
year 10 for this part of the rule to be $3,052 (= 8 x $76.29 [GS-14, 
step 5 rate] x 5 hours).
    GSA calculates it will take 12 GSA employees, on average with a GS-
15, step 5, with an average hourly rate of $89.73/hour, 0.25 hours each 
to distribute the union organizer access guidance to the owned building 
community once every 10 years. Therefore, GSA calculated the total 
annual estimated cost for year 1 and year 10 for this part of the rule 
to be $269 (= 12 x $89.73 [GS-15, step 5 rate] x 0.25 hours).
    There are 893 GSA employees in the Building Manager, GS-1176, job 
series. GSA calculates it will take 893 GSA building managers, on 
average with a GS-13, step 5, with an average hourly rate of $64.56/
hour, 0.25 hours each to receive and review the initial and any updates 
to the union organizer access guidance, again estimated to be once 
every 10 years. Therefore, GSA calculated the total annual estimated 
cost for year 1 and year 10 for this part of the rule to be $14,413 (= 
893 x $64.56 [GS-13, step 5 rate] x 0.25 hours).

[[Page 54169]]

2. Federally Leased Buildings
    GSA calculates it will take 12 GSA employees, on average with a GS-
14, step 5, with an average hourly rate of $76.29/hour, 30 hours each 
in the first year to develop awareness communication at the 
headquarters level for occupant agencies on the change in the union 
organizer access policies. Therefore, GSA calculated the total 
estimated cost for this part of the rule to be $27,464 (= 12 x $76.29 
[GS-14, step 5 rate] x 30 hours).
    GSA calculates it will take 12 GSA employees, on average with a GS-
14, step 5, with an average hourly rate of $76.29/hour, 5 hours once 
every 10 years to develop awareness communication at the headquarters 
level for occupant agencies on any updates to the union organizer 
access policies. Therefore, based on the prior estimation of updates to 
the policies occurring once every decade, GSA calculated the total 
annual estimated cost for year 10 for this part of the rule to be 
$4,577 (= 12 x $76.29 [GS-14, step 5 rate] x 5 hours).
    There are 893 GSA employees in the building manager, GS-1176, job 
series. GSA calculates it will take 893 GSA employees, on average with 
a GS-14, step 5, with an average hourly rate of $76.29/hour, 0.5 hours 
each to develop awareness communication at the regional or local level 
for occupant agencies on the union organizer access policies once every 
10 years. Therefore, GSA calculated the total annual estimated cost for 
year 1 and year 10 for this part of the rule to be $34,063 (= 893 x 
$76.29 [GS-14, step 5 rate] x 0.5 hours).
    GSA calculates it will take 1 GSA employee, on average with a GS-
14, step 5, with an average hourly rate of $76.29/hour, 0.25 hours to 
distribute the regional or local level awareness communication to 
occupant agencies on any changes to the union organizer access 
policies, estimated to occur once every 10 years. Therefore, GSA 
calculated the total annual estimated cost for year 1 and year 10 for 
this part of the rule to be $19 (1 x $76.29 [GS-14, step 5 rate] x 0.25 
hours).
    There are 893 GSA employees in the building manager, GS-1176, job 
series. GSA calculates it will take 893 GSA employees, on average with 
a GS-13, step 5, with an average hourly rate of $64.56/hour, 0.25 hours 
each to distribute the regional or local level awareness communication 
to occupant agencies on the changes to the union organizer access 
policies once every 10 years, based on the prior estimation. Therefore, 
GSA calculated the total annual estimated cost for year 1 and year 10 
for this part of the rule to be $14,413 (= 893 x $64.56 [GS-13, step 5 
rate] x 0.25 hours).
    GSA estimated the costs associated with Federal employees based on 
historical familiarization of headquarters, regional, and local level 
employees and subject matter expert judgment. Subject matter experts 
included GSA realty specialists and leasing contracting officers. GSA 
calculates it will take 10,000 Federal employees, on average with a GS-
14, step 5, with an average hourly rate of $76.29/hour, 0.5 hours each 
to receive and review the awareness communication on the union 
organizer rule once every 10 years, based on the prior estimation of 
changes to the policies occurring once each decade. Therefore, GSA 
calculated the total annual estimated cost for year 1 and year 10 for 
this part of the rule to be $381,450 (= 10,000 x $76.29 [GS-14, step 5 
rate] x 0.5 hours).
3. Buildings Under Construction
    GSA calculates it will take 8 GSA employees, on average with a GS-
14, step 5, with an average hourly rate of $76.29/hour, 30 hours each 
in the first year to develop awareness communication on the union 
organizer rule. Therefore, GSA calculated the total estimated cost for 
this part of the rule to be $18,310 (= 8 x $76.29 [GS-14, step 5 rate] 
x 30 hours).
    GSA calculates it will take 8 GSA employees, on average with a GS-
14, step 5, with an average hourly rate of $76.29/hour, 5 hours each to 
develop awareness communication as a building requirement on the union 
organizer access policies once every 10 years. Therefore, GSA 
calculated the total annual estimated cost for year 10 for this part of 
the rule to be $3,052 (= 8 x $76.29 GS-14 Step 5 rate x 5 hours).
    GSA calculates it will take 12 GSA employees, on average with a GS-
15, step 5, with an average hourly rate of $89.73/hour, 0.25 hours each 
to distribute the awareness communication as a building requirement on 
the union organizer access policies once every 10 years, based on the 
prior estimation. Therefore, GSA calculated the total annual estimated 
cost for year 1 and year 10 for this part of the rule to be $269 (= 12 
x $89.73 [GS-15, step 5 rate] x 0.25 hours).
    GSA assumes 3 GSA employees per large construction project and 1 
GSA employee per small construction project receiving and reading the 
communication, which totals to 5,846 GSA employees. GSA calculates it 
will take 5,846 GSA employees, on average with a GS-13, step 5, with an 
average hourly rate of $64.56/hour, 0.25 hours each to receive and 
review the awareness communication as a building requirement on union 
organizer access policies once every 10 years, based on the prior 
estimation. Therefore, GSA calculated the total annual estimated cost 
for year 1 and year 10 for this part of the rule to be $94,354 (= 5,846 
x $64.56 [GS-13, step 5 rate] x 0.25 hours).
4. Total Government Costs
    GSA calculates the total government costs to be $603,334 in the 
first year and $549,931 in year 10. The table below shows total present 
value and annualized costs for 10 years.

------------------------------------------------------------------------
                         Summary                            Total costs
------------------------------------------------------------------------
Present Value (3 percent)...............................     $994,961.48
Annualized Costs (3 percent)............................      116,639.84
Present Value (7 percent)...............................      843,420.59
Annualized Costs (7 percent)............................      120,084.12
------------------------------------------------------------------------

B. Public Costs

1. Public Costs
    Public costs associated with this rule include both large and small 
businesses managing buildings with ongoing construction projects in or 
on GSA-controlled property. The GSA Office of Design and Construction 
estimated that there are 109 capital projects under construction. GSA 
assumes each large business operating a building under construction 
will have one employee receive and review the awareness communication. 
GSA calculates it will take 109 large business employees, on average 
with a GS-13, step 5, with an average hourly rate of $64.56/hour, 0.25 
hours to receive and review the awareness communication as a building 
requirement on the union organizer rule once every 10 years. GSA 
estimates the average hourly rate of $64.56 for the large business 
employees as the private sector pay equivalent of a GS-13, step 5. 
Therefore, GSA calculated the total annual estimated cost for year 1 
and year 10 for this part of the rule to be $1,759 (= 109 x $64.56 [GS-
13, step 5 rate] x 0.25 hours).
    GSA estimates an average of 5,519 small businesses operating a 
building under construction each year. GSA assumes each small business 
operating a building under construction will have one employee receive 
and review the awareness communication. GSA calculates it will take 
5,519 small business employees, with an average hourly rate of $64.56/
hour, 0.25 hours to receive and review the awareness communication as a 
building requirement on the union organizer rule

[[Page 54170]]

once every 10 years. GSA estimates the average hourly rate of $64.56 
for the small business employees as the private sector pay equivalent 
of a GS-13, step 5. Therefore, GSA calculated the total annual 
estimated cost for year 1 and year 10 for this part of the rule to be 
$89,077 (= 5,519 x $64.56 [GS-13, step 5 rate] x 0.25 hours).
2. Overall Public Costs
    GSA calculates the total undiscounted public costs related to 
buildings under construction to be $90,836 over 10 years. The table 
below shows total present value and annualized costs for 10 years.

------------------------------------------------------------------------
                         Summary                            Total costs
------------------------------------------------------------------------
Present Value (3 percent)...............................      $88,190.29
Annualized Costs (3 percent)............................       10,338.59
Present Value (7 percent)...............................       84,893.46
Annualized Costs (7 percent)............................       12,086.92
------------------------------------------------------------------------

C. Overall Total Additional Costs

    The overall total additional undiscounted cost of this final rule 
is estimated to be $1,334,937 over a 10-year period. GSA did not 
identify any cost savings based on the impact of the rule.

D. Analysis of Alternatives

    The preferred alternative is the process laid out in the analysis 
above. However, GSA has analyzed two alternatives to the preferred 
process.
    Alternative 1: GSA could decide to take no regulatory action and 
not allow exceptions for labor organizations representing or seeking to 
represent contractors working in GSA-controlled property to access the 
property. No action from the government would be required. Union 
organizers might still be able to access GSA-controlled property; 
however, they would have to have a Federal employee act as their host, 
depending on access rules for the specific building. This option would 
be inconsistent with the Task Force recommendation based on E.O. 14025, 
as it would mean that some buildings or worksites would be inaccessible 
to union organizers, thus denying workers opportunities to be informed 
of the benefits of unions and collective bargaining. As a result, GSA 
rejects this alternative.
    Alternative 2: GSA could take limited regulatory action based on 
the policy direction of E.O. 14025 and the recommendation from the Task 
Force. Limited action from the government would be required, and would 
only be partially consistent with E.O. 14025 and the Task Force 
recommendation, and would only partially provide workers opportunities 
to be informed of the benefits of unions and collective bargaining. As 
a result, GSA rejects this alternative.

VIII. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FMR do not impose recordkeeping or information collection 
requirements, or the collection of information from offerors, 
contractors or members of the public, that require the approval of OMB 
under 44 U.S.C. 3501 et seq.

List of Subjects in 41 CFR Part 102-74

    Government property management.

Robin Carnahan,
Administrator of General Services.

    For the reasons set forth in the Preamble, GSA amends 41 CFR part 
102-74 as set forth below:

PART 102-74--FACILITY MANAGEMENT

0
1. The authority citation for 41 CFR part 102-74 is revised to read as 
follows:

    Authority: 40 U.S.C. 121(c); E.O. 12191, 45 FR 7997, 3 CFR, 1980 
Comp., p 138; E.O. 14025, 86 FR 22829.


0
2. Amend Sec.  102-74.410 by redesignating paragraphs (d) through (f) 
as paragraphs (e) through (g) and adding new paragraph (d) to read as 
follows:


Sec.  102-74.410  What is the policy concerning soliciting, vending and 
debt collection?

* * * * *
    (d) Labor organizations representing or seeking to represent 
contractors working in Federal Government facilities;
* * * * *
[FR Doc. 2022-17949 Filed 9-1-22; 8:45 am]
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