Federal Management Regulation; Soliciting Union Memberships Among Contractors in GSA-Controlled Buildings
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Issuing agencies
Abstract
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).
Full Text
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<title>Federal Register, Volume 87 Issue 170 (Friday, September 2, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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:
<a href="http://Regulations.gov">Regulations.gov</a> at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal and/or business
confidential information provided. To confirm receipt of your
comment(s), please check <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="/cdn-cgi/l/email-protection#3b5853495248155854555e5e555e427b5c485a155c544d"><span class="__cf_email__" data-cfemail="b3d0dbc1dac09dd0dcddd6d6ddd6caf3d4c0d29dd4dcc5">[email protected]</span></a> for
clarification of content. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or <a href="/cdn-cgi/l/email-protection#ebacb8aab98e8cb88e88ab8c988ac58c849d"><span class="__cf_email__" data-cfemail="da9d899b88bfbd89bfb99abda9bbf4bdb5ac">[email protected]</span></a>. 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); <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/06/25/executive-order-on-diversity-equity-inclusion-and-accessibility-in-the-federal-workforce/">https://www.whitehouse.gov/briefing-room/presidential-actions/2021/06/25/executive-order-on-diversity-equity-inclusion-and-accessibility-in-the-federal-workforce/</a>), 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
<a href="https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/2022/02/OSEC20220195.pdf">https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/2022/02/OSEC20220195.pdf</a> 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.
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Summary Total costs
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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
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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]
BILLING CODE P
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</html>This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.