[Federal Register: August 11, 1998 (Volume 63, Number 154)]
[Notices]
[Page 42834-42835]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au98-71]
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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 March 31, 1998, an arbitration
panel rendered a decision in the matter of Herbert E. Brown v. Ohio
Rehabilitation Services Commission, Bureau of Services for the Visually
Impaired (Docket No. R-S-/97-6). 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, Herbert E. Brown.
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 Advance, S.W., 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.
Electronic Access to This Document
Anyone may also view this document, as well as all other Department
of Education documents published in the Federal Register, in text or
portable document format (pdf) on the World Wide Web at either of the
following sites:
http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use the pdf you must have the Adobe Acrobat Reader Program with
Search,
[[Page 42835]]
which is available free at either of the previous sites. If you have
questions about using the pdf, call the U.S. Government Printing Office
toll free at 1-888-293-6498.
Anyone may also view these documents in text copy only on an
electronic bulletin board of the Department. Telephone: (202) 219-1511
or, toll free, 1-800-222-4922. The documents are located under Option
G-Files/Announcements, Bulletins and Press Releases.
Note: The official version of this document is the document
published in the Federal Register.
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
Complainant Herbert E. Brown, a blind vendor, operated a snack bar
facility with vending machines at the headquarters of the Ohio
Department of Natural Resources (ODNR) in Columbus, Ohio from 1989
until his removal from the facility in January 1995.
This dispute concerns complainant's removal as the manager of the
ODNR snack bar vending facility. In December 1994, Mr. Brown requested
and received permission from the Ohio Rehabilitation Services
Commission, Bureau of Services for the Visually Impaired, the State
licensing agency (SLA), to take a vacation from December 20, 1994 to
January 5, 1995 outside the State of Ohio.
In accordance with the operator's agreement and the SLA's rules and
regulations governing the Randolph-Sheppard Vending Facility Program,
complainant designated his employee to operate the facility in his
absence. Complainant did not leave a telephone number where he could be
reached during his vacation with either his employee or the SLA.
On December 21, 1994, complainant's employee fell and broke her leg
en route to open the vending facility. The employee was hospitalized
until January 2, 1995. A member of the SLA staff visited the employee
in the hospital on December 21, 1994 and obtained the keys to the snack
bar. On December 22, 1994, the SLA secured a substitute vendor to
operate the vending machines that were a part of the facility. However,
the over-the-counter food service of the snack bar remained closed. Mr.
Brown learned on December 23 that his employee had broken her leg and
was not operating the vending facility. Complainant thereafter
attempted to reach the SLA staff but was unsuccessful. Complainant left
a message with an SLA staff member that he was unable to return to Ohio
due to illness. However, complainant again did not leave a telephone
number where he could be reached.
On January 4, 1995, the SLA took possession of the vending facility
and prepared a closing inventory. Mr. Brown was not present, and,
according to the closing inventory, he owed the SLA $621.15.
On January 5, 1995, Mr. Brown returned to Ohio and met with the SLA
staff. The staff provided complainant with written notification of his
removal as manager of the vending facility and the termination of his
operator's agreement. The SLA alleged that Mr. Brown had violated the
SLA's rules and regulations and vendor operator's agreement by failing
to have the facility open at specific times, failing to find an
immediate replacement for the employee who had been hospitalized, not
leaving a telephone number where complainant could be reached, and
abandoning his facility.
Complainant gave the SLA a handwritten note on January 5, 1995
contesting the closing inventory amount of $621.15. However, the SLA
did not treat Mr. Brown's note as a first step in the grievance process
under its rules and regulations, and it considered the matter closed.
Pursuant to the SLA's rules and regulations, a vendor is ineligible
to apply for operation of another vending facility if there is an
outstanding closing inventory balance.
Mr. Brown requested and received a State fair hearing on the issue
of his removal from the ODNR vending facility and the termination of
his operator's agreement. The hearing officer affirmed the SLA's
decision to remove complainant and to terminate his operator's
agreement. It was that decision that Mr. Brown sought to have reviewed
by a Federal arbitration panel. A hearing was held on October 31, 1997.
Arbitration Panel Decision
The issues before the arbitrator panel were whether the actions by
the SLA to remove Mr. Brown from managing his vending facility and to
terminate his operator's agreement were in accordance with the Act,
implementing regulations, and State rules and regulations.
Regarding the issues of removal of complainant from his vending
facility and termination of his operator's agreement, the panel was
unanimous in finding that, given the unique facts and circumstances of
the matter, the SLA's actions were improper. The panel concluded that,
while complainant was not blameless in the matter, Mr. Brown had not
abandoned his facility and so completely abrogated his duties as to
merit removal and termination of his operator's agreement. The panel
ruled that complainant should be reinstated to the first available
vending facility in the Columbus, Ohio area, which is defined as
Franklin County, Ohio. The panel declined to award Mr. Brown any
monetary damages.
The panel directed the SLA to immediately begin the grievance
process permitting Mr. Brown to contest the closing inventory amount.
The arbitration panel further directed that the closing inventory issue
be resolved before Mr. Brown is reinstated to a vending facility in
compliance with the panel's decision and award.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: August 6, 1998.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 98-21542 Filed 8-10-98; 8:45 am]
BILLING CODE 4000-01-M