[Federal Register: June 15, 1999 (Volume 64, Number 114)]
[Notices]
[Page 32031-32032]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn99-46]
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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 June 25, 1998, an arbitration
panel rendered a decision in the matter of Michael R. Underhill v.
Texas Commission for the Blind (Docket No. R-S/97-16). This panel was
convened by the U.S. Department of Education pursuant to 20 U.S.C.
107d-1(a), upon receipt of a complaint filed by petitioner, Michael
Underhill.
FOR FURTHER INFORMATION: A copy of the full text of the arbitration
panel decision may be obtained from George F. Arsnow, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3230, Mary E. 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.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
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Note: The official version of this document is the document
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SUPPLEMENTARY INFORMATION: Pursuant to 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
This dispute concerns the alleged improper application by the Texas
Commission for the Blind, the State licensing agency (SLA), of its
transfer and promotion policies. Specifically, the complainant, Michael
Underhill, alleges that he was denied an opportunity to bid on a
military base food service contract under the SLA's special assignment
process.
A summary of the facts is as follows. Complainant is a licensed
manager under the SLA's Randolph-Sheppard vending facility program. In
March, 1995, complainant was selected to receive a prospective military
base food service assignment. Complainant ranked fourth on a list of
five managers who qualified for such an assignment based on a special
selection process to receive military base food service contracts. This
special selection process was developed by the SLA in conjunction with
the Elected Committee of Blind Managers.
In January 1997, the SLA allegedly ended the special assignment
process for these military base contracts over the objections of the
Elected Committee of Blind Managers, thus terminating complainant's
eligibility to bid on the next available military base contract.
The SLA alleged that it had the authority to end the special
assignment process because the unusual circumstances that merited use
of the special assignment process no longer existed.
The complainant requested and received a full evidentiary hearing,
which was held on May 19, 1997. In a decision dated June 2, 1997, the
Administrative Law Judge (ALJ) ruled that the SLA's decision to end the
special assignment process for the military base contract should be
reversed and that the special assignment process should be reinstated
until all of the licensed managers who qualified for such an assignment
received a military base assignment or withdrew from consideration.
In a letter dated June 23, 1997, to the complainant, the SLA
adopted the ALJ's decision in part by reinstating the special
assignment process for Fort Bliss, Reese Air Force Base, and Fort Hood
and stipulated that this process would remain in effect until one of
the military base contracts was available. At that time, the SLA would
determine whether it was in the best interest of the Randolph-Sheppard
vending program to eliminate this special assignment process. In
addition, the SLA affirmed
[[Page 32032]]
that the original selection list would remain in effect.
The complainant requested review of the SLA's stipulated decision
by a Federal arbitration panel. The panel was convened on April 17,
1998.
Arbitration Panel Decision
The issue before the arbitration panel was whether the SLA's
stipulated decision to make a determination concerning the continuation
of the special assignment process at the time a military base became
available was inconsistent with the ALJ's determination.
The arbitration panel ruled that, at the time a military base
contract became available, there may be a compelling reason that would
benefit both the program and the complainant that would justify not
assigning complainant to a military base food service facility.
The panel further ruled that the SLA had the authority to end an
exceptional practice promulgated under the Business Enterprise Program
(BEP) Manual and pursuant to the Act and implementing regulations.
However, the panel found that complainant's reliance on this exception
entitled him to special consideration when the next military base
facility becomes available. If he applies for such an assignment and is
not selected, but is determined to be qualified to successfully operate
the facility, the SLA will use the authority granted to it under the
special assignment provision of the BEP Manual to assign Mr. Underhill
to the facility. The panel ruled that complainant need not be provided
this priority if he applies for a new facility under the regular
selection process.
One panel member dissented.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: June 9, 1999.
Curtis L. Richards,
Acting Assistant Secretary for Special Education and Rehabilitative
Services.
[FR Doc. 99-15064 Filed 6-14-99; 8:45 am]
BILLING CODE 4000-01-P