[Federal Register Volume 60, Number 114 (Wednesday, June 14, 1995)]
[Notices]
[Pages 31289-31290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14474]
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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 November 13, 1992, an
arbitration panel rendered a decision in the matter of James E. Waldie
v. Alabama Division of Rehabilitation Services (Docket No. R-S/89-8).
This panel was convened by the Secretary of the U.S. Department of
Education pursuant to 20 U.S.C. 107d-1(a), upon receipt of a complaint
filed by petitioner, James E. Waldie, on April 12, 1989. The Randolph-
Sheppard Act provides a priority for blind individuals to operate
vending facilities on Federal property. Under this section of the
Randolph-Sheppard Act (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 fair 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) 205-9317.
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 complainant, James E. Waldie, is a blind vendor licensed by the
[[Page 31290]]
respondent, the Alabama Division of Rehabilitation Services (ADRS),
pursuant to the Randolph-Sheppard Act. ADRS is the SLA responsible for
the operation of the Alabama vending facility program for blind
individuals. The purpose of the program is to establish and support
blind vendors operating vending facilities on Federal property.
Beginning in May of 1985, Mr. Waldie operated a vending facility
located in the Lyster Army Hospital, Fort Rucker, Alabama (Lyster
Facility). Mr. Waldie alleged in his complaint that there was a problem
with excessively high temperatures in the Lyster Facility. He also
raised two other issues regarding facility safety and the sale of
tobacco products. In addition, sometime late in 1985 or early in 1986,
Mr. Waldie expressed a desire to expand into three buildings that were
located near the Lyster Army Hospital building.
Because these issues were not resolved by ADRS to Mr. Waldie's
satisfaction, the complainant initiated administrative proceedings
under ADRS regulations. On April 11, 1988, pursuant to ADRS rules and
regulations, a fair hearing was conducted at Mr. Waldie's request. The
decision rendered after the hearing was unfavorable to the complainant
who subsequently requested a full evidentiary hearing, which was held
on May 26, 1988. The State hearing officer upheld the administrative
decision of ADRS in his opinion of August 2, 1988. The hearing officer
stated that (1) the record did not indicate that Mr. Waldie had been
denied the opportunity to expand his facility; (2) the determination of
which product lines are to be sold at a vending facility is a decision
to be made by the SLA and the Federal property manager; and (3) the
ventilation and air circulation problems are the result of new product
lines requiring machines that generate heat. Further, the hearing
officer stated that the permit was not violated by the Federal agency,
that ADRS had not violated its rules and regulations, and that evidence
presented failed to establish a violation of any rule or regulation
governing the Business Enterprise Program and did not prove any
erroneous application of that program. The SLA's decision was affirmed.
Mr. Waldie requested that the Secretary of Education convene an
arbitration panel to review the issues. The arbitration hearing was
held on June 27, 1991 and January 28, 1992. Two of the issues, the
facility security and sale of tobacco products, were resolved during
pre-hearing negotiations.
Arbitration Panel Decision
The panel found that the main issue in this case concerned the
question of whether the SLA had improperly dealt with the air
circulation and ventilation at the Lyster Facility. After hearing
testimony, the panel found that, in fact, the Lyster Facility did not
provide proper ventilation. In determining whose responsibility it was
to rectify the problem, the panel turned to the concept of satisfactory
site as used in the Act and the regulations. Satisfactory site is
defined in the Act in 20 U.S.C. 107a(d)(3) and in the regulations in 34
CFR 395.1(q).
The panel set out the two different circumstances under which a
vending facility can be established. First, the panel considered 34 CFR
395.30(a), which requires that Federal property managers take all steps
necessary to assure that, wherever feasible, one or more vending
facilities for operation by blind licensees shall be located on all
Federal property. The second circumstance in which the establishment of
a vending facility is discussed is in 34 CFR 395.31, which requires
that, when a Federal property owner acquires or substantially renovates
a property, the Federal property owner is required to provide a
satisfactory site for the operation of a vending facility by a blind
vendor.
Because the Act and the regulations use the term ``satisfactory
site'' only in the latter circumstance, the panel concluded that, if
the Lyster Facility was established under the first circumstance, the
definition of satisfactory site would not apply. While the panel found
that no evidence was submitted at the hearing as to the circumstances
under which the Lyster Facility was established, the panel reasoned
that, even if the Lyster Facility was established under 34 CFR 395.30,
the definition of satisfactory site found in the regulations would
apply for two reasons. First, the parties have proceeded since the
outset on the assumption that this language applies to the Lyster
Facility. Second, the panel noted that both the SLA and the Federal
property manager agreed, at the time the permit was issued, that the
Lyster Facility constituted a satisfactory site.
The panel concluded that there is a general ongoing obligation on
the part of the Federal property manager to provide a satisfactory
site. The panel further determined that the Lyster Facility must be
properly cooled in order to be considered a satisfactory site.
In recognizing that the Federal agency was not a party to the
arbitration proceeding, the panel turned to the responsibilities of the
ADRS in ensuring that the vending facility was a satisfactory site. The
panel determined that, although the ADRS was not responsible for
providing an air conditioning unit, it was obligated to urge the
Federal agency to rectify the problem. Consequently, ADRS was directed
to use vigorous means, including the use of arbitration under the Act,
to compel the Federal property manager to provide sufficient cooling
for the Lyster Facility.
In considering the action of ADRS in responding to Mr. Waldie's
request for expansion, the panel determined that ADRS has the
obligation to reasonably pursue expansion sites for blind vendors and
to use reasonable judgment in distributing any of those locations among
qualified blind vendors. The panel concluded that ADRS acted reasonably
in response to Mr. Waldie's request even though no expansion occurred,
notwithstanding the plans to move the vending facility at some future
date. Consequently, the panel delayed remedy on the matter for a period
of time to determine whether a move of the facility would rectify the
situation.
Finally, the panel addressed the issue of retroactive damages and
an award of attorney's fees raised by Mr. Waldie. The panel concluded,
based on reasoning of the majority opinion in McNabb v. U.S. Department
of Education, 862 F.2d 681 (8th Cir., 1988), that Mr. Waldie was not
entitled to retroactive damages under the Act. The panel determined, as
well, based on the decision in Alyeska Pipeline Service v. Wilderness
Society, 421 U.S. 240 (1975), that an express provision in the Act was
required to award attorney's fees to Mr. Waldie and that no such
provision existed in the Randolph-Sheppard Act.
One panel member dissented from the opinion of the majority as to
the temperature issue. A second panel member dissented with respect to
the expansion issue and the issue of the right of the blind vendor to
seek retroactive damages and attorney's fees.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the United States Department of
Education.
Dated: June 8, 1995.
Judith E. Heumann,
Assistant Secretary, Office of Special Education and Rehabilitative
Services.
[FR Doc. 95-14474 Filed 6-13-95; 8:45 am]
BILLING CODE 4000-01-P
