01-13637. 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 March 17, 2000, an arbitration panel rendered a decision in the matter of Idaho Commission for the Blind and Visually Impaired v. United States Postal Service (Docket No. R-S/99-7). This panel was convened by the U.S. Department of Education pursuant to 20 U.S.C. 107d-1(b) upon receipt of a complaint filed by petitioner, the Idaho Commission for the Blind.

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

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at [phone].

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

In 1998, the Idaho Commission for the Blind and Visually Impaired, the State licensing agency (SLA), alleged that it made repeated requests for information to the United States Postal Service (USPS) concerning the construction of the new U.S. Postal Service Processing and Distribution Center located at 2201 South Cole Road in Boise, Idaho. Receiving no response to its inquiries or notice of a possible vending facility location as required by the Act, the SLA submitted a letter to the Postal Service District Manager requesting information about the Processing and Distribution Center.

On December 2, 1998, the Postal Service District Manager responded to the SLA's letter requesting information and apologized for the lack of notification. On March 17, 1999, the SLA submitted an application for a vending facility at the Processing and Distribution Center. USPS responded to the SLA's application on March 23, 1999, indicating that they would not agree to the terms of the SLA's application for the permit. On March 29, 1999, representatives from the SLA and USPS met to discuss the application.

USPS's position concerning the application was that the vendor selected for the location at the Processing and Distribution Center would be required to physically be present at the facility 40 hours per week (the “on-site support” provision), and the vendor would be precluded from operating any other vending facility location on the property (the “exclusivity” provision). USPS further indicated that these terms were non-negotiable and would be required to be included in the application and the resulting vending permit.

On March 30, 1999, the SLA contacted USPS about the pending negotiations on the vending permit and was informed that the on-site support and exclusivity provisions were new permit terms required of blind vendors, but not commercial vendors.

On April 16, 1999, the SLA requested in writing that USPS either approve or deny its application for a vending permit at the Processing and Distribution Center. The SLA did not receive a response from USPS and subsequently filed a request with the Secretary of the Department of Education (Department) to convene a Federal arbitration panel. The SLA alleged that the priority provisions of the Act and its implementing regulations had been violated. An arbitration pre-hearing on this matter was held on December 7, 1999, which resulted in a Stipulated Agreement concerning the issues and facts of the dispute. The parties agreed that the arbitration panel's written award on the stipulated issues would dispose of the dispute without the need for an arbitration hearing. The panel submitted a Final Award and Decision to the Department on March 17, 2000. On May 16, 2000, the Department received a copy, signed by all parties, of the Stipulated Agreement.

Arbitration Panel Decision

The stipulated issues addressed by the arbitration panel were:

1(A). Have limitations been placed on blind vendors as defined by the Randolph-Sheppard Act?

(B). If so, does the U.S. Postal Service have a legal requirement to submit those limitations to the U.S. Department of Education for the Secretary's determination that they are justified?

2. Is the Postal Service in violation of the Act and the U.S. Constitution by requiring on-site support and exclusivity provisions of Randolph-Sheppard vendors, but not of commercial vendors?

3. If the Postal Service did violate the Randolph-Sheppard Act on any of these issues, what is the authority of the arbitration panel to determine the appropriate remedy or remedies?

The arbitration panel ruled that the on-site support and exclusivity provisions required by USPS were limitations as provided in the Act and must be approved by the Secretary of Education and published in the Federal Register before they could be required as conditions of approval for the SLA's application. The panel further ruled that by requiring the on-site support and exclusivity provisions of blind vendors represented by the SLA, USPS was in violation of the Act.

The panel stated that it is the obligation of the head of the United States Postal Service to cause the improper acts or practices to be terminated promptly and to take any other action that is necessary to carry out the Arbitration Panel's award.

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 25, 2001.

Francis V. Corrigan,

Deputy Director, National Institute on Disability and Rehabilitation Research.