[Federal Register Volume 59, Number 142 (Tuesday, July 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18161]
[[Page Unknown]]
[Federal Register: July 26, 1994]
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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 29, 1990, an
arbitration panel rendered a decision in the matter of Dennis Franklin
v. Kentucky Department for the Blind, (Docket No. R-S/89-5). This panel
was convened by the Secretary of the U.S. Department of Education
pursuant to 20 U.S.C. 107d-1(a), upon receipt of a complaint filed by
petitioner, Dennis Franklin, on January 17, 1989. The Randolph-Sheppard
Act provides a priority for blind individuals to operate vending
facilities on Federal property. Under this section of the Randolph-
Sheppard Act (the Act), a blind licensee dissatisfied with the State's
operation or administration of the vending facility program authorized
under the Act may request a full evidentiary fair hearing from the
State licensing agency (SLA). If the licensee is dissatisfied with the
State agency's decision, the licensee may complain to the Secretary,
who then is required to convene an arbitration panel to resolve the
dispute.
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, 400 Maryland Avenue, S.W., 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 property.
Background
The complainant, Dennis Franklin, is a blind vendor licensed by the
respondent, the Kentucky Department for the Blind, pursuant to the
Randolph-Sheppard Act, 20 U.S.C. 107 et seq. The Department is the SLA
responsible for the operation of the Kentucky vending facility program
for blind individuals. The purpose of the program is to establish and
support blind vendors operating vending facilities on Federal property.
Mr. Franklin operated a vending facility from 1977 until 1987 at
the Gardner Lane Postal Facility in Louisville, Kentucky. This was
pursuant to a permit between the SLA and the U.S. Postal Service, which
was supplemented by a food service contract between the SLA and the
Postal Service. During 1985, complaints about the food service and Mr.
Franklin's management surfaced. In both July and October 1985, the U.S.
Postal Service specifically requested the removal of the vendor.
Complaints cited poor attitude, empty vending machines, outdated food
products, dirty tables, and lack of service. On July 17, 1985, the
Postal Service threatened to terminate the supplemental food service
contract with the SLA unless strong corrective actions were taken.
Meetings throughout August and September 1985 indicated improvement and
a partial resolution. In October 1985, however, an incident involving
an alleged physical altercation led to the Postal Service requesting
that the vendor be subject to disciplinary action for serious
misconduct. Additional complaints were documented on January 17, 1986.
In a February 4, 1986, letter to the vendor, the SLA notified him of
its dissatisfaction with his performance of duties in operating the
Gardner Lane vending facility and the receipt of repeated complaints by
postal service patrons, which were probable cause for finding a
violation of the operator agreement. Additional complaints were
received during the next several months. In October 1986, two union
representatives from the Postal Service wrote to voice strong
dissatisfaction with the food service and Mr. Franklin's management.
On June 26, 1987, Mr. Franklin received a letter from the SLA
terminating his agreement effective July 27, 1987. On July 14, 1987,
Mr. Franklin requested an administrative review, which was conducted by
the SLA on July 28th. A decision was rendered by the reviewing officer
confirming the decision of the SLA to terminate Mr. Franklin's
operator's agreement. On July 27th, complainant filed a Motion for
Preliminary Injunction in U.S. District Court for the Western District
of Kentucky, and the SLA decided to delay termination of the vendor's
operator's agreement until an order was issued by the Court. On
September 9, the court conducted a hearing and on September 28 rendered
its decision denying the vendor's request for injunction, citing that
there was little likelihood of the vendor prevailing on the merits of
the case.
On October 1, 1987, the SLA formally terminated the operator's
agreement with the complainant; however, his license was not revoked.
The SLA granted Mr. Franklin continued seniority up through October 1.
Subsequently, Mr. Franklin requested a full evidentiary hearing,
which was held on January 20, February 4, and February 16, 1988. The
hearing officer issued an opinion on March 30, 1988, indicating that
the SLA's decision to terminate the agreement was justified by Mr.
Franklin's failure to revise his operating procedures. On April 4,
1988, the complainant was notified by the SLA that the hearing
officer's decision was being adopted as final agency action.
In addition, on June 9, 1988, Mr. Franklin requested an evidentiary
hearing on several grievances concerning his failure to be appointed an
assistant manager or manager for vending facilities up for bid by the
SLA. On August 31, 1988, an evidentiary hearing was conducted, and on
November 23, the hearing officer issued a decision finding that
complainant had not been discriminated against regarding his bid
application for two locations that he did not receive. On January 17,
1989, the complainant filed a request with the Secretary of Education
concerning an appeal of these issues, which were consolidated for an
arbitration hearing scheduled for November 14 and 15, 1989.
Arbitration Panel Decision
The central issues that the arbitration panel reviewed were--(1)
Whether the SLA followed its rules and regulations when it rescinded
the complainant's operator's agreement and removed him from the Gardner
Lane Post Office pursuant to 20 U.S.C. 107a(b) and 34 CFR 395.36; and
(2) Whether the SLA adhered to proper procedures in the administration
of its transfer and promotion policies concerning the complainant's
bids on vendor openings in the program pursuant to 20 U.S.C. 107b-
1(3)(c) and 34 CFR 395.7(c).
The arbitration panel concluded that the problems at the Gardner
Lane Post Office were well documented beginning in 1985 with intensive
involvement by the SLA in attempts to resolve the matters. On two
occasions in 1985, the problems resulted in a request from postal
officials for the removal of the complainant regarding alleged
mismanagement and lack of customer satisfaction, including a threatened
boycott of the vending facility by postal union employees in 1986 and
culminating in 1987 with the SLA's possible loss of the Gardner Lane
facility.
The arbitration panel held that the SLA acted properly and for just
cause in removing the complainant from the Gardner Lane Post Office
facility. The vendor had more than adequate notice of his performance
deficiencies from the complaints, meetings, and reviews that had
previously taken place. The SLA fulfilled its responsibilities to
assist the vendor in working out the problems with the Federal property
managers; however, the complainant failed to reform his business
practices to satisfactorily continue to manage the vending facility.
The panel concluded that the SLA acted improperly in denying the
vendor his profits for the period prior to the full evidentiary
hearing. A vendor's earnings are protected during any proceeding
against a vendor's license. Although no action was taken to revoke Mr.
Franklin's license, the State and Federal regulations indicate a policy
that a vendor's employment will remain protected until a full hearing
on charges is held, absent a suspension of the vendor from the facility
and subsequent termination.
Also, the panel held the SLA liable for lost profits for the period
from his removal until the State hearing officer's opinion was
rendered. The panel also ordered a further investigation and review for
the accounting of profits that had been paid to the vendor during a
short period after he had been removed from the Gardner Lane Post
Office facility. The record provided at the hearing did not adequately
reconcile end-of-year discrepancies in accounting. The SLA will review
documents and share findings with complainant.
The panel rejected the vendor's claim that he had been improperly
denied certain positions for which he bid. Seniority is only one factor
to be considered. The panel raised concerns, however, that the vendor
not be blacklisted from employment. The vendor will continue to remain
licensed to manage a facility. Also, the panel rejected the vendor's
claim for attorney's fees, finding authority for such an award to be
ambiguous.
Panel Members Gashel and Davis concurred in the majority opinion
and filed separate dissenting opinions on certain issues.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: July 21, 1994.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 94-18161 Filed 7-25-94; 8:45 am]
BILLING CODE 4000-01-P