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 January 25, 1995, an

arbitration panel rendered a decision in the matter of Robert Hill v.

Michigan Commission for the Blind (Docket No. R-S/93-2). This panel was

convened by the Secretary of the U.S. Department of Education pursuant

to 20 U.S.C. 107d-2, upon receipt of a complaint filed by Robert Hill.

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, D.C. 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 and other property.

Background

The complainant, Robert Hill, was granted a license and was

assigned to operate a vending facility at the U.S. Army Tank-Automotive

Command (TACOM). Following his assignment, staff of the Michigan

Commission for the Blind, the State licensing agency (SLA), made

routine visits to complainant's vending facility.

On one of the routine visits, the staff person alleges that certain

problems were found at the facility, which included outdated products

being sold, lack of cleaning and upkeep of the area, and lack of timely

filing of required reports. The SLA staff person also alleges that a

number of complaints from officials at TACOM had been received and that

these complaints were under investigation to confirm their validity.

The SLA staff person provided technical assistance to the vendor,

making numerous suggestions and attempting to assist the vendor in

increasing his profit percentage, which was below the norm established

by the SLA. The SLA staff person encouraged Mr. Hill to contact other

experienced vendors in the vending program for assistance. When no

improvement was noted by the SLA staff person and Mr. Hill rejected

offers of assistance, the business counselor recommended to the SLA

that Mr. Hill's license be revoked as the result of the sanitation

problems, the sale of outdated products, the failure to meet profit

margin standards, and the late filing of reports.

On October 16, 1991 the SLA notified Mr. Hill that he was failing

to comply with the vendor's operating license and agreement

requirements and that license revocation proceedings were pending.

Subsequently, Mr. Hill's license was revoked, and he requested and

received a State fair hearing on April 27, 1992.

On July 30, 1992 the hearing officer rendered an opinion sustaining

the SLA's decision to revoke Mr. Hill's vending license. The hearing

officer considered Mr. Hill's argument that there was a personality

conflict between himself and the SLA staff person. Mr. Hill alleged

that the conflict was due to his racial ethnicity and that this was the

reason for the revocation of his license. The hearing officer ruled

that this argument was not credible. Testimony at the hearing indicated

that numerous attempts had been made by the SLA to provide technical

assistance and training to Mr. Hill and to assist him in reaching the

25 percent profit margin requirement. Mr. Hill further stated that he

was not given sufficient opportunities to bid on other locations after

his license revocation.

On March 12, 1993 Mr. Hill filed a complaint requesting that the

Secretary of the U.S. Department of Education convene a Federal

arbitration panel to review the hearing officer's decision, which was

adopted as final agency action by the SLA. The complaint was heard by

the arbitration panel on September 15 and 26, 1994.

Arbitration Panel Decision

The arbitration panel ruled on three issues as follows: (1) Whether

the SLA discriminated against the complainant on the basis of his race.

(2) Whether the complainant was given sufficient notice

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of his violation of the rules in an appropriate media for his use. (3)

Whether a vendor after license revocation can be required to wait a

period of time before reapplying or be placed on a waiting list behind

other vendors bidding on vending locations.

Concerning the first issue, the panel ruled that, contrary to the

complainant's claims, the charges of racial discrimination were not

substantiated by testimony.

With respect to the second issue, the panel ruled that the SLA was

in compliance with the Federal statute and regulations and State rules

concerning communications to licensees. The panel found that

complainant had resource persons who would provide assistance in

reviewing any communication received by him. Furthermore, the panel

noted that the SLA staff person routinely read to the complainant the

evaluations and reports prepared during the onsite visits.

Finally, concerning the procedures used by the SLA for

complainant's reapplication for a vending license, the panel ruled that

it was appropriate to require him to be retrained and reoriented and

that, if the complainant fulfilled these requirements, he should be

placed on the bidding list for another vending location. If complainant

did not complete retraining requirements, then his placement on the

bidding list should be delayed until such time as he complied with that

prerequisite. However, the panel ruled that, once complainant had

completed retraining, his placement on the bidding list should be in

accordance with his prior standing of seniority. The panel concluded

that to deny complainant his former standing on the bidding list would

be unreasonable and punitive.

The views and opinions expressed by the panel do not necessarily

represent the views and opinions of the U.S. Department of Education.

Dated: October 18, 1995.

Howard R. Moses,

Acting Assistant Secretary for Special Education and Rehabilitative

Services.

[FR Doc. 95-26552 Filed 10-25-95; 8:45 am]

BILLING CODE 4000-01-P