E9-19235. Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY:

Department of Education.

ACTION:

Notice of arbitration panel decision under the Randolph-Sheppard Act.

SUMMARY:

The Department of Education (Department) gives notice that on March 1, 2009, an arbitration panel rendered a decision in the matter of Bernard R. Werwie, Sr. v. Pennsylvania Office of Vocational Rehabilitation, Case No. R-S/07-9. This panel was convened by the Department under 20 U.S.C. 107d-1(a), after the Department received a complaint filed by the petitioner, Bernard R. Werwie, Sr.

FOR FURTHER INFORMATION CONTACT:

You may obtain a copy of the full text of the arbitration panel decision from Suzette E. Haynes, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5022, Potomac Center Plaza, Washington, DC 20202-2800. Telephone: [phone]. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.

Individuals with disabilities may obtain this document in an accessible format (e.g., braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Under section 6(c) of the Randolph-Sheppard Act (the Act), 20 U.S.C. 107d-2(c), 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

Mr. Bernard R. Werwie, Sr., (Complainant) alleged violations by the Pennsylvania Office of Vocational Rehabilitation, the State licensing agency (SLA) of the Randolph-Sheppard Act (Act) and the implementing regulations in 34 CFR part 395. Specifically, Complainant alleged that the SLA improperly administered the Randolph-Sheppard Vending Facility Program in violation of the Act, implementing regulations under the Act, and State rules and regulations, when the SLA denied Complainant's bid to manage Facility #804 at the U.S. Post Office in Pittsburgh, Pennsylvania.

On or about June 2006, Facility #804 became available due to the death of the previous vending facility manager. At that time, the SLA placed the facility out for bid on a regional satellite basis rather than on a Statewide or permanent basis. According to section 2430.91 of the SLA's rules and regulations governing the Randolph-Sheppard vending program, a satellite facility is one operated by a vendor at the same time the vendor is operating another assigned facility. The SLA is authorized to establish a satellite facility only on a temporary basis when the SLA can demonstrate that it does not have a qualified blind vendor to place on a permanent basis.

The SLA alleged that, because there was a crisis situation at Facility #804, its decision to place the facility out for bid on a regional satellite basis rather than on a Statewide or permanent basis was within its discretion under its State rules and regulations. Further, the SLA contended that its decision was sanctioned by the Elected Committee of Blind Vendors (ECBV), which pursuant to the Act and 34 CFR part 395, is an elected body fully representative of all blind vendors in a State.

A State fair hearing on this matter was held on March 19, 2007. On April 18, 2007, the hearing officer issued a decision denying Complainant's grievance. It was this decision that Complainant sought review of by a Federal arbitration panel.

According to the arbitration panel, the issues to be resolved were: (i) Whether the Pennsylvania Office of Vocational Rehabilitation's decision to bid Facility #804 on a regional basis violated the Randolph-Sheppard Act, the implementing regulations, and State program rules and regulations; and (ii) if there was a violation, what is the remedy.

Arbitration Panel Decision

After hearing testimony and reviewing all of the evidence, the panel majority ruled that the Pennsylvania Office of Vocational Rehabilitation's decision was a reasonable, good faith attempt to remedy a bad situation, and was done in the best interest of all licensed blind vendors in the State of Pennsylvania. The panel denied Complainant's request to be placed without delay to Facility #804. Additionally, the panel denied his request for monetary relief.

One panel member dissented. Specifically, this panel member believed that the SLA unlawfully designated Facility #804 as a satellite facility and that the Complainant should have been compensated for loss of revenue had he been the successful bidder as well as for attorney's fees incurred in his seeking Federal arbitration.

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

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: http://www.ed.gov/​news/​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.gpoaccess.gov/​nara/​index.html.

Delegation of Authority: The Secretary of Education has delegated authority to Andrew J. Pepin, Executive Administrator for the Office of Special Education and Rehabilitative Services, to perform the functions of the Assistant Secretary for Special Education and Rehabilitative Services.

Dated: August 6, 2009.

Andrew J. Pepin,

Acting Assistant Secretary for Special Education and Rehabilitative Services.