[Federal Register: October 26, 1995 (Volume 60, Number 207)]
[Notices]
[Page 54866-54867]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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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 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problems were found at the facility, which included outdated products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
[[Page 54867]]
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