[Federal Register Volume 60, Number 105 (Thursday, June 1, 1995)]
[Notices]
[Pages 28591-28593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13354]
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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.
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SUMMARY: Notice is hereby given that on June 16, 1993, an arbitration
panel rendered a decision in the matter of Joseph A. Roan and Kenneth
White v. Massachusetts Commission for the Blind, (Docket No. R-S/92-
12). This panel was convened by the Secretary of [[Page 28592]] the U.
S. Department of Education pursuant to 20 U.S.C. 107d-1(a), upon
receipt of a complaint filed by Joseph A. Roan and Kenneth White on
July 2, 1992. The Randolph-Sheppard Act (the Act) creates a priority
for blind individuals to operate vending facilities on Federal
property. Under this section of the Act, a blind licensee dissatisfied
with the State's operation or administration of the vending facility
program authorized under the Act may request a full evidentiary hearing
from the State licensing agency (SLA). If the licensee is dissatisfied
with the State agency's decision, the licensee may file a complaint
with the Secretary of the U.S. Department of Education who then is
required to convene an arbitration panel to resolve the dispute.
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, 600 Independence Avenue, SW., Room 3230
Switzer Building, Washington, DC 20202-2738. Telephone: (202) 205-93l7.
Individuals who use a telecommunications device for the deaf (TDD) may
call the TDD number at (202) 205-8298.
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20
U.S.C. 107d-2(c)), the Secretary publishes a synopsis of arbitration
panel decisions affecting the administration of vending facilities on
Federal property.
Background
The complainants, Joseph A. Roan and Kenneth White, are licensed
blind vendors in the vending program operated by the Massachusetts
Commission for the Blind, the SLA. Mr. Roan was the manager of a
facility located in the lobby of the John F. Kennedy Federal Building
(JFK Federal Building). Mr. White was the manager of a facility located
on the sixth floor of the same building.
In the Fall of l991, the JFK Federal Building was scheduled for
extensive renovation, which involved the closing, in phases, of the
five vending facilities at this site, including the ones operated by
Messrs. Roan and White. Due to the renovation of the building, the
General Services Administration (GSA) entered into an agreement with
the SLA to lease space at One Congress Street. The SLA planned to use
this space as a vending facility and characterized this location as a
``temporary stand'' to accommodate a vendor who was displaced during
the renovation of the JFK Federal Building.
The complainants alleged that the SLA inappropriately characterized
this facility as a ``temporary location'' to accommodate vendors
displaced during the renovation of the JFK Federal Building. The
complainants further alleged that the SLA failed to advertise for bid
to all vendors the stand located at One Congress Street, but rather
moved a displaced vendor into this location in violation of 20 U.S.C.
107a(b) and 34 CFR 395.7(c) relating to the transfer and promotion of
vendors by the SLA.
On April 22, 1992 both Mr. Roan and Mr. White received a notice
that the vendor of the IRS lobby facility at the JFK Federal Building
was retiring and that this location was going out for bid. Mr. Roan and
Mr. White jointly wrote a letter to the SLA requesting that the IRS
lobby stand not be put up for bid, but rather that complainants be
placed there to operate this facility while their respective stands
were closed due to the scheduled renovation of the JFK Federal
Building. Complainants' request was denied by the SLA. Subsequently,
Mr. Roan and Mr. White requested and received an administrative review
and a fair hearing by the SLA. In an opinion dated May 26, 1992, the
Hearing Officer ruled that the SLA properly negotiated for the
establishment of the Congress Street stand as a temporary accommodation
to otherwise displaced JFK Federal Building vendors. With regard to
complainants' objections that the IRS lobby stand was put up for
bidding, the Hearing Officer ruled that this location was established
as a permanent facility, which made it open to bidding by all vendors
in the Massachusetts Vending Facility Program. Mr. Roan and Mr. White
filed a complaint with the U.S. Department of Education requesting
arbitration regarding the establishment of the temporary stand at One
Congress Street and the open bidding on the IRS lobby stand. A hearing
was conducted on April 13, 1993.
Arbitration Panel Decision
The arbitration panel ruled that there is no dispute that there is
no express authority in the regulations for the creation of temporary
stands. There is also nothing in the regulations to preclude this
administrative action. The use of this device represents a reasonable
effort by the SLA to further the program objectives of providing
employment for blind vendors.
To lessen the effects of building renovations on vending facilities
in the program, the SLA goes to great lengths to find a temporary site
within the same workplace for the displaced vendor until his or her
permanent location is back in operation.
The SLA has followed this practice in the past, and it is
recognized by vending facility managers that the temporary sites are
different in their essential nature from permanent vending facility
sites, and, therefore, these locations are not subject to the posting
and bidding procedures. In fact, the panel noted that there was not a
challenge to this procedure when One Congress Street was used as a
temporary stand during Phase One of the renovation at the JFK Federal
Building. When Phase Two occurred and two vendors were to be displaced,
the SLA used the same standard operating procedure in assigning the
temporary location. Based on seniority, One Congress Street was
assigned to another displaced vendor rather than Mr. White.
Subsequently, Mr. White filed for an arbitration hearing. He was joined
in his request by Joseph Roan, who was facing displacement during the
third phase of the renovation.
The panel ruled that, even assuming that the SLA should have posted
the One Congress Street location, there was no indication that Mr.
White, as the junior vendor, would have benefited in any way from such
a procedure.
Regarding the IRS lobby stand, the panel noted that this was not a
temporary location, but rather a permanent and highly desirable vending
facility. Therefore, under the clear regulations of the SLA, permanent
vending facilities must be opened for bid. Further, the panel reasoned
that there is nothing in the statute, regulations, or legislative
history that suggests that an SLA has the authority to use a permanent
vending facility as a temporary accommodation site to save a particular
vendor from dislocation. The Randolph-Sheppard Act gives preference to
blind vendors for licensing. It does not create a preference among
blind vendors as to who will work at which vending facility.
The panel found that complainants' argument that the SLA was
establishing a policy of promotion over employment was unpersuasive.
The panel determined that the program embodies a system of promotion by
bidding. At no time has there been a guarantee that all licensed
vendors would have a vending location before any vendor could move to a
more desirable location.
The panel ruled that complainants Roan and White have benefited
from the bidding system, winning more profitable stands on multiple
occasions despite the fact that other vendors have been without a place
of employment. The panel reasoned that simply because Mr. Roan and Mr.
White perceived a method of preserving their level of
[[Page 28593]] business during the JFK Federal Building renovations did
not mean that the SLA's longstanding system of dealing with displaced
vendors should be changed.
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, 1995.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 95-13354 Filed 5-31-95; 8:45 am]
BILLING CODE 4000-01-P
