01-13468. 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 August 22, 2000, an arbitration panel rendered a decision in the matter of Jack Bedikian v. California Department of Rehabilitation (Docket No. R-S/98-6). This panel was convened by the U.S. Department of Education pursuant to 20 U.S.C. 107d-1(a) upon receipt of a complaint filed by petitioner, Jack Bedikian.

FOR FURTHER INFORMATION CONTACT:

A copy of the full text of the arbitration panel decision may be obtained from George F. Arsnow, U.S. Department of Education, 400 Maryland Avenue, SW., room 3230, Mary E. Switzer Building, Washington, DC 20202-2738. Telephone: [phone]. If you use a telecommunications device for the deaf (TDD), you may call the TDD number at [phone].

Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed in the preceding paragraph.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: www.ed.gov/​legislation/​FedRegister.

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Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.access.gpo.gov/​nara/​index.html.

SUPPLEMENTARY INFORMATION:

Pursuant to the Randolph-Sheppard Act (20 U.S.C. 107d-2(c)) (the Act), the Secretary publishes in the Federal Register a synopsis of each arbitration panel decision affecting the administration of vending facilities on Federal and other property.

Background

This dispute concerns the alleged improper termination of Mr. Jack Bedikian, a licensed blind vendor, from the Business Enterprise Program of the California Department of Rehabilitation, the State licensing agency (SLA).

A summary of the facts is as follows: Mr. Bedekian (complainant) was a licensed manager under the SLA's Randolph-Sheppard vending facility program. Beginning in 1991, complainant operated a cafeteria and vending machine service at the Worldway Postal Center (Worldway).

The SLA alleged that, starting in 1993, it received complaints from Worldway concerning health and service issues. Specifically, in 1995 the Safety Specialist of the Office of Safety and Health at Worldway, who had the responsibility for investigating health and safety complaints from its employees, requested that the SLA terminate Mr. Bedikian's agreement to operate the facility based on complaints from its employees.

Subsequently, the SLA issued a formal reprimand to complainant allowing 30 days for corrective action. During this time, the SLA alleged that it provided assistance to help complainant correct deficiencies and meet the needs of the customers. The SLA noted some improvement in the cafeteria operation. However, problems concerning bug infestation of food and drink and moldy bread were still being reported to the Safety Specialist.

In September 1997, the SLA and the Safety Specialist from Worldway met again to review the complaints of the employees concerning the freshness of food from both the cafeteria and the vending machines, pricing, and rudeness of staff. Staff of the SLA's Business Enterprise Program subsequently conducted an on-site review of complainant's facility.

On December 11, 1997, the Los Angeles County Health Department requested that complainant close his facility as the result of violations in 17 categories, including unsafe food temperature, handling and storage of food, rodent and insect problems, and improper storage of cooking equipment and supplies. Other physical and structural problems were identified that were the responsibility of Worldway, which initiated corrective action to resolve these problems.

On December 16, 1997, the Los Angeles County Health Department gave complainant conditional approval to reopen the cafeteria and vending machine service serving packaged foods only. Complainant allegedly disregarded this restriction and attempted to serve hot food although hot water for utensil cleaning and hand washing was unavailable. On December 17th, the SLA issued a termination notice to complainant, which was later rescinded upon the SLA's learning of the conditional approval received by complainant to reopen the facility.

The SLA alleged that it continued to receive complaints from Worldway in January 1998. On January 26, 1998, staff of the SLA performed an inspection of complainant's facility and found 24 sanitation deficiencies. Subsequently, on February 5, 1998, complainant was notified of his license termination, removal from the Worldway Postal Center, and his appeal rights.

Complainant requested a full evidentiary hearing on this matter, which was held on March 27, 1998. In a decision dated April 16, 1998, the Administrative Law Judge affirmed the SLA's decision to terminate complainant's license and remove him from the Worldway Postal Center cafeteria and vending machine service. It was this decision that complainant sought to have reviewed by a Federal arbitration panel. An arbitration hearing on this matter was held on August 20, 1999, and a second hearing was held on December 14, 1999.

Arbitration Panel Decision

The central issue before the arbitration panel was whether the actions taken by the California Department of Rehabilitation to terminate the vending license of Mr. Bedikian and remove him from managing the Worldway cafeteria and vending machine service were in accordance with the Act (20 U.S.C. 107 et seq.), the implementing regulations (34 CFR part 395), and applicable State rules and regulations.

The panel ruled that complainant was essentially terminated for poor performance in the operation of the Worldway cafeteria and vending machine service.

Based upon the evidence presented, the panel determined that, while complainant was not one of the more successful managers, there was no demonstrable effort by the SLA, other than structural repairs, to assist complainant in correcting problems and keeping the Worldway cafeteria and vending machine service operating. Further, according to the evidence received in the record, the panel determined that the SLA and the postal facility cooperated in the removal of the complainant.

Therefore, the panel ruled that the actions taken by the California Department of Rehabilitation to remove Mr. Bedikian from managing the Worldway cafeteria and vending machine service were not in accordance with the Act, implementing regulations, and State rules and regulations. The law specifically requires the SLA to assist the vendor in all reasonable ways to overcome the problems cited by the Federal facility. The obligation on the SLA is an affirmative obligation, which requires the State to do something affirmatively.

Additionally, the panel agreed that complainant was entitled to compensatory damages for the loss of net profits from his business in 1995 and 1996, as well as attorney's fees and costs totaling $59,570.44. The panel directed the SLA to place the complainant in the next available facility that was likely to generate approximately the same income.

The views and opinions expressed by the panel do not necessarily represent the views and opinions of the U.S. Department of Education.

Dated: May 23, 2001.

Francis V. Corrigan,

Deputy Director, National Institute on Disability and Rehabilitation Research.