On September 2, 2022, the General Services Administration (GSA) issued a final rule regarding union access to GSA facilities. The changes, which are effective immediately, come following a White House Task Force on Worker Organizing and Empowerment recommendation for GSA to except union organizing and bargaining from the GSA’s general prohibition on soliciting, posting, and distributing materials in GSA-controlled property. While the previous version of the regulations included an exception for union organizer access to federal employees, there was no such exception for federal contractor workforces. Because the rule relates to agency management and personnel, it is exempt from advance notice-and-comment requirements. We discuss important reminders to keep contractors on the right side of potential solicitation and organizing issues below.

The National Labor Relations Act (NLRA) protects private-sector employee rights to discuss terms and conditions of employment with other employees and third parties, and to unionize and bargain collectively with their employers. Contrary to a common misconception, these rights apply regardless of whether employees have already joined a union. The GSA’s new rule will make it much easier for union organizers to meet with employees at the worksite (historically, these meetings have had to happen off-site). Contractors who may encounter these issues for the first time should remember the following rules:

  1. Employers can enforce non-discriminatory rules that limit employees’ right to solicit or engage in other protected activities during working hours, in working areas. However, it’s unlawful to prevent these conversations in non-working areas (think breakrooms or parking garages) during non-working time, like lunch breaks.
  2. Although a company may provide its opinion to employees about union representation, exactly what is said and how it is said is important. During a union campaign, supervisors should never interrogate employees, make promises about their terms of employment, conduct surveillance of employees, or threaten employees about voting for a union.
  3. It’s important to review company policies and procedures to make sure that rules do not inadvertently run afoul of the NLRA. Policies that chill employee speech and unionizing activities can land companies with a costly unfair labor practice charge.
  4. Many GSA contracts are subject to the McNamara-O’Hara Service Contract Act (SCA). When it comes to negotiating union contracts on service contracts, there are a host of additional rules to consider to ensure SCA compliance and to make sure that contractors are eligible for SCA price adjustments. SCA contractors should carefully study the Federal Acquisition Regulation and familiarize themselves with those rules before negotiating a collective bargaining agreement.

PilieroMazza regularly counsels clients on these and related issues, including providing management training to facilitate compliance. Please contact Sarah Nash, the author of this client alert, or Nichole Atallah of PilieroMazza’s Labor & Employment Group, for assistance in getting your business ready to comply.