[Federal Register: May 17, 2001 (Volume 66, Number 96)]
[Notices]
[Page 27494-27495]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17my01-43]
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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 November 5, 1999, an
arbitration panel rendered a decision in the matter of California
Department of Rehabilitation v. General Services Administration (Docket
No. R-S/97-11). This panel was convened by the U.S. Department of
Education pursuant to 20 U.S.C. 107d-1(b) upon receipt of a complaint
filed by petitioner, the California Department of Rehabilitation.
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. If you
use a telecommunications device for the deaf (TDD), you may call the
TDD number at (202) 205-8298.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
Electronic Access to This Document
You may view this document, as well as all other Department of
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[[Page 27495]]
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20
U.S.C. 107d-2(c)) (the Act), 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 violation by the General Services
Administration (GSA) in the termination of the permit of the California
Department of Rehabilitation, the State licensing agency (SLA), to
operate a cafeteria at the Internal Revenue Service (IRS) facility, in
Fresno, California. A summary of the facts is as follows: The SLA and
GSA entered into an agreement to establish a cafeteria at the IRS
Building, 5045 E. Butler Avenue, Fresno, California on November 1,
1995. The facility had been operated by a private vendor under contract
to GSA.
Although the vending facility was a cafeteria, the SLA and GSA
proposed a permit rather than a contract. GSA proposed that the permit
be issued for a limited term of approximately 1 year, subject to
renewal or cancellation at the end of that period. While the SLA
declined to enter into a limited agreement, the permit that was
eventually issued between the SLA and GSA was for an ``indefinite
period of time subject to suspension or termination on the basis of
non-compliance by either party.''
The operation of the IRS cafeteria began on December 18, 1995. On
September 25, 1996, an inspection of the cafeteria was conducted by the
Food and Drug Administration (FDA). The FDA inspector noted numerous
unsanitary conditions such as improper food preparation and storage,
pest infestation, and employees eating and drinking beverages outside
the break area. The violations noted by the FDA inspector were brought
to the attention of the cafeteria facility manager. On March 5, 1997,
an FDA inspector conducted another inspection at the IRS cafeteria.
Again, the FDA inspector observed several violations similar to those
noted in the September 25, 1996, inspection. Additional violations were
found such as rodent droppings, improper cleaning of the conveyor belt,
lack of soap and paper towels at the handwashing sink, and improper
cleaning of the floor in the dishwashing area. These violations were
pointed out to the cafeteria manager, who allegedly did not dispute any
of the FDA inspector's observations. Subsequently, the cafeteria was
closed.
The SLA alleged that the closure of the IRS cafeteria violated the
Act and the terms of the permit. Additionally, the SLA alleged that GSA
violated an agreement to give the SLA revenues from the operation of a
portable coffee cart in the cafeteria area.
The SLA filed a request to convene an arbitration panel to hear
this complaint. A Federal arbitration hearing on this matter was held
on December 15-18, 1998. A second hearing was convened on March 1-5,
1999 to conclude testimony.
Arbitration Panel Decision
The majority of the panel, after considering all of the evidence,
concluded that the parties jointly agreed to a permit agreement rather
than a cafeteria contract for the vending facility at the IRS building.
The panel further found that, while IRS personnel were interested in
having a food court at the facility, the SLA furnished the vendor with
equipment that essentially provided for multiple serving stations and a
broader variety of food similar to the food court concept sought by IRS
officials. Thus, the panel ruled that there was no convincing evidence
to support the SLA's allegation that GSA caused the termination of the
vendor's permit under the pretext of putting in a food court by a
private vendor.
Based upon the evidence presented, the majority of the panel
further concluded that, throughout the vendor's tenure at the IRS,
there were numerous inspections of the cafeteria. Most notable of the
inspections were those conducted by FDA on September 25, 1996, and
March 4, 1997, which identified numerous sanitation, food preparation,
and storage violations. Those inspections resulted in the cafeteria
closing.
The panel ruled that the unsanitary conditions created serious
health risks to thousands of customers of the cafeteria at the IRS
building. Therefore, it was reasonable and proper for GSA to remove the
vendor because of the extreme unsanitary conditions. Furthermore, the
panel ruled that the SLA's allegation concerning the vendor's removal
lacking due process was without merit.
Finally, the majority of the panel ruled that the weight of the
evidence indicated that GSA owed some accounting and commissions to the
SLA for the coffee cart operation. The panel ordered the parties to
jointly determine the formula for the amount owed by GSA to the SLA.
One panel member concurred.
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: May 11, 2001.
Andrew J. Pepin,
Executive Administrator for Special Education and Rehabilitative
Services.
[FR Doc. 01-12402 Filed 5-16-01; 8:45 am]
BILLING CODE 4000-01-P