[Federal Register Volume 60, Number 14 (Monday, January 23, 1995)]
[Notices]
[Pages 4405-4406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1577]
-----------------------------------------------------------------------
DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the Randolph-Sheppard Act
AGENCY: Department of Education.
ACTION: Notice of Arbitration Panel Decision Under the Randolph-
Sheppard Act.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that on January 13, 1992, an
arbitration panel rendered a decision in the matter of State of
Michigan, Michigan Commission for the Blind, Petitioner v. U.S. Postal
Service, Respondent. This panel was convened by the Secretary of the
U.S. Department of Education pursuant to 20 U.S.C. 107d-2. The
Randolph-Sheppard Act (the Act) creates a priority for blind
individuals to operate vending facilities on Federal property. Under
the Act, State licensing agencies dissatisfied with Federal operation
of the vending facility program authorized under the Act may file an
arbitration complaint with the Secretary of Education.
FOR FURTHER INFORMATION CONTACT: George F. Arsnow, U.S. Department of
Education, 600 Independence Avenue, S.W., Room 3230, Switzer Building,
Washington, D.C. 20202-2738. Telephone: (202) 205-9317. Individuals who
use a telecommunications device for the deaf (TDD) may call the TDD
number at (202) 205-8298. A copy of the full text of the arbitration
panel decision may be obtained from this contact.
SUPPLEMENTARY INFORMATION: Pursuant to section 107d-2(c) of the
Randolph-Sheppard Act, the Secretary publishes a synopsis of each
arbitration panel decision affecting the administration of vending
facilities on Federal property.
Synopsis of Arbitration Panel Decision
Factual Background and Procedural History
Since January 3, 1987, Garnett Laurell, a blind vendor licensed by
the Michigan Commission for the Blind (the Commission), has operated
the Central Lunchroom that includes 10 vending machines at the Detroit
Bulk Mail Center (Mail Center) pursuant to an agreement between the
Commission and the U.S. Postal Service (the Postal Service).
The Canteen Corporation (the Canteen), also in an agreement with
the Postal Service, operated approximately 21 vending machines located
around the workroom floor and vending machines in non-workroom areas
(administrative offices and in the truckers' lounge). The Commission
asserted that it should have been allowed to operate the vending
facilities operated by the Canteen (in addition to the Central
Lunchroom) on a permit basis and that, as a result, the Postal Service
failed to comply with provisions of the Randolph-Sheppard Act (Act), as
amended, 20 U.S.C. 107 et seq. On May 3, 1989, the U.S. Department of
Education ordered the convening of an arbitration panel pursuant to 20
U.S.C. 107d-1(b), which governs disputes between State licensing
agencies.
Previously, on December 27, 1983, the Postal Service had notified
the Commission that it could bid on a vending contract at the Mail
Center. On February 12, 1984, the Postal Service issued a solicitation
for the Central Lunchroom and snack vending at the Mail Center with
offers due by March 13, 1985. The Commission did not submit a bid on
the basis that it believed that it was entitled to a permit for the
facility. The Central Lunchroom and snack vending contract was awarded
to the Canteen on March 27, 1985, for a period of three years, with two
possible one-year renewals at the Postal Service's option. The
Commission's application for a permit to operate the Central Lunchroom
at the Mail Center was submitted on November 15, 1985, and was approved
by the Mail Center manager on January 6, 1986. In October 1987, the
Commission submitted an application for the satellite vending operated
by the Canteen. That [[Page 4406]] application was not approved by the
Mail Center.
Testifying for the Commission before the arbitration panel, Ms.
Laurell asserted that the vending machines operated by the Canteen were
in direct competition with her operation. Additional testimony
demonstrated that the Canteen, a national corporation, purchased in
bulk and could offer the same products as those available at the
Commission facility, but at lower prices, and that the Canteen's low
prices were part of a ``no profit'' or ``break even'' policy, which was
directed at benefitting the postal employees. As a result, profit from
the Commission facility was limited to approximately $24,000 per year,
which was too low to make Ms. Laurell's facility a viable operation in
terms of sharing of competing vending machine income.
The Administrator of the Business Enterprise Program, Michigan
Commission for the Blind, who was involved in setting up the vendor
facility at the Mail Center in 1983, believed that the assigned blind
vendor should have been given priority to operate all food services at
the facility. Postal Service management disagreed, asserting that a
blind person could not safely work on the workroom floor because of
danger from mechanized equipment as evidenced by incidents in which
postal employees had been hit and injured by mail-moving equipment. The
Postal Service's position was that blind vendors posed a safety problem
and that, if it had been determined that the vending machines were to
be operated by blind vendors, management may have decided to remove the
machines.
Arbitration Panel Decision
The key issue of the dispute, as identified by the panel, was the
extent to which the blind vendor should be given priority in operating
all the vending facilities at the Detroit Bulk Mail Center. Because the
Randolph-Sheppard Act limited the priority provided to blind vendors to
the extent that any facility operated by a blind vendor ``would not
adversely affect the interests of the United States,'' the panel
concluded that the Postal Service was not required to approve the
Commission's request to operate all of the vending machines at the Mail
Center. Specifically, the panel identified the possibility for injury
as among those circumstances that might adversely affect the Federal
Government's interests. Hence, the Postal Service's legitimate safety
concerns for a blind vendor servicing machines on the workroom floor
supported its decision not to afford the blind vendor priority in
operating those facilities. Other factors cited by the panel in support
of the Postal Service's position included-- (1) the potential negative
effect on employee morale that would result from a management decision
to eliminate vending machines from the work area for purposes of
safety; and (2) the finding that the Canteen-run vending machines on
the workroom floor were not in ``direct competition'' with the blind
vendor since the Central Lunchroom operated by the blind vendor was not
readily accessible to most postal employees.
While the panel offered the preceding rationale for supporting the
Postal Service's actions in connection with the workroom floor vending
machines, the status of those machines could not be conclusively
decided until the Postal Service fully justified its finding in writing
to the Secretary, as required under the Act. Accordingly, the panel
remanded the issue of the working area machines to the Postal Service,
either to resolve with the Commission or to handle in accordance with
section 107(b) of the Act.
As to the non-workroom vending facilities, the panel concluded that
the blind vendor should be given priority in operating those facilities
on the basis that--(1) the potential safety hazards that existed on the
workroom floor were not present at those sites; and (2) the vending
machines at those locations were situated in non-mail processing areas,
were relatively close to the Central Lunchroom operated by the blind
vendor, and were, therefore, in direct competition with the blind
vendor's operation. Thus, the panel found that the priority requirement
of the Act had been satisfied and ruled that the operation of vending
machines in the non-workroom area be turned over to the blind vendor or
the Commission as soon as possible. In addition, the Postal Service was
ordered to pay an amount equal to the profits from the operation of
these machines to the blind vendor or the Commission from the time the
option to operate those machines became available to the Commission.
The panel member appointed by the Commission, concurring in part
and dissenting in part with the majority, wrote a separate opinion in
which he stated that he would require the Postal Service to make
restitution to the Commission for its failure to follow the law when it
denied the blind vendor priority in operating the vending machines at
the Mail Center. The panel member also dissented from the majority's
conclusions concerning the alleged safety risks to the blind vendor on
the workroom floor and the panel's resolution of the direct versus
indirect competition issue, citing the absence of competent, factual
evidence from both parties.
The views and opinions expressed in the arbitration panel decision
do not necessarily represent the views and opinions of the U.S.
Department of Education.
Dated: January 17, 1995.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 95-1577 Filed 1-20-95; 8:45 am]
BILLING CODE 4000-01-P
