FR Doc E8-21145[Federal Register: September 11, 2008 (Volume 73, Number 177)]
[Notices]
[Page 52849-52850]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11se08-56]
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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: The Department of Education (Department) gives notice that on
April 7, 2008, an arbitration panel rendered a decision in the matter
of David Zelickson v. California Department of Rehabilitation, Case no.
R-S/06-10). This panel was convened by the Department under 20 U.S.C.
107d-1(a), after the Department received a complaint filed by the
petitioner, David Zelickson.
FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text
of the arbitration panel decision from Suzette E. Haynes, U.S.
Department of Education, 400 Maryland Avenue, SW., Room 5022, Potomac
Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7374. If
you use a telecommunications device for the deaf (TDD), you may call
the Federal Relay Service (FRS) at 1-800-877-8339.
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 under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: Under section 6(c) of 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
Mr. David Zelickson (complainant) alleged violations by the
California Department of Rehabilitation, the state licensing agency
(SLA) of the Randolph-Sheppard Act (Act), and the implementing
regulations in 34 CFR part 395. Complainant alleged that the SLA failed
to enforce the arbitration panel decision and award in the case of
California Department of Education v. General Services Administration,
Case no. R-S/99-1. The aforementioned grievance was a complaint filed
by the SLA regarding management of a vending facility at the Roybal
Federal Building (Roybal) in Los Angeles, California where complainant
was assigned as the licensed blind vendor.
Specifically, complainant received a permit from the SLA to operate
the Roybal building in 1993. The permit was renewed in 1996. In
November 1997, the General Services Administration (GSA) requested the
removal of complainant from the Roybal building indicating its right to
do so because of a change in the nature of the food service provided at
the vending facility.
The SLA requested the Secretary of Education to convene a federal
arbitration panel to hear this matter. A panel was convened. On
December 26, 2000, the panel found that GSA was in violation of the act
concerning the removal of complainant from the Roybal building. In the
decision and award, the panel ruled that complainant should be
reinstated to the Roybal building and that GSA was obligated to make
both the complainant and the SLA whole for their economic losses. GSA
did not contest the award that was final and binding.
For six years, the SLA attempted to secure voluntary compliance by
GSA with the December 2000 decision and award. GSA refused until March
2006 to allow complainant to return to the Roybal building. GSA
claiming sovereign immunity, also maintained that it never agreed to
compensate complainant for his economic losses.
Shortly after March 2006, complainant filed a request for Federal
arbitration with the secretary of Education regarding this matter. A
Federal arbitration panel heard this case on August 10, 2007.
According to the arbitration panel, the issues to be resolved were
as follows: (1) To what extent, if any was the SLA obligated to enforce
the 2000 arbitration decision and award; (2) did the SLA meet its
obligation to complainant; and (3) if not, what was the appropriate
remedy.
Arbitration Panel Decision
After reviewing all of the records and hearing testimony of
witnesses, the panel majority found that the SLA was obligated to
enforce the 2000 arbitration decision and award and failed to meet its
obligation to the complainant by not suing for enforcement of the
arbitration decision and award. As discussed by the panel, a lawsuit is
the only way an SLA
[[Page 52850]]
can protect its interest in a facility it established, as well as
protecting a blind vendor's interest because a blind vendor has no
right to enforce an arbitration decision and award favorable to the SLA
against a federal agency. As a result of this failure to protect the
vendor's interest, the SLA became liable for damages that were afforded
to complainant pursuant to the 2000 arbitration decision and award,
which had directed GSA to pay complainant for his lost earnings. The
panel determined the amount of wages lost by the vendor, but then
stated that the vendor had a duty to mitigate damages. Based on the
following circumstances, the panel ruled that complainant failed to
mitigate his damages.
On or about August 1, 2002, the SLA had offered the complainant an
opportunity to apply for another permanent facility without waiving his
rights to return to the Roybal building. However, complainant argued
that he lacked the financial ability to make a new vending facility
operable. The panel majority rejected this argument based on
complainant's previous experience in the business enterprise program
and the SLA's past assistance to him. The majority concluded that it
was complainant's obligation to request financial assistance from the
SLA to start a new vending facility and he failed to do so. Thus,
because complainant failed to mitigate his damages, the panel majority
concluded that the appropriate period for computing damages should end
as of August 2002, the time the SLA offered complainant the opportunity
to manage a new permanent facility.
Accordingly, the panel majority ruled that the appropriate period
for calculating damages was from December 1, 1997 to August 1, 2002 or
a period of 56 months. Thus, the panel majority ruled that compensatory
damages must be paid to the complainant by the SLA within 30 days from
the date of the panel's decision calculated at the rate of $2500 per
month for 56 months or $140,000. Also, the panel majority ruled that if
the SLA failed to pay complainant within 30 days of the final decision,
interest would be attached equivalent to what the National Labor
Relations Boards computes on its awards of back pay.
Additionally, the panel majority ruled that the SLA must give the
complainant a permit to operate a vending facility at the Roybal
building, if the Roybal building was currently part of the business
enterprise program and available, or in the alternative provide
complainant a comparable vending facility. This was to be accomplished
with 90 days from the date of the panel's decision. Further, the panel
retain jurisdiction for a period not to exceed 90 days from the date of
the award to resolve any issues relating to or compliance with the
final decision and award by the SLA.
One panel member dissented.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the Department.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at:
http://www.gpoaccess.gov/nara/index.html.
Dated: September 8, 2008.
Tracy R. Justesen,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. E8-21145 Filed 9-10-08; 8:45 am]
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