Arbitration Panel Decision Under the Randolph-Sheppard Act

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

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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