[Federal Register Volume 59, Number 165 (Friday, August 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21136]


[[Page Unknown]]

[Federal Register: August 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 26, 1990, an 
arbitration panel rendered a decision in the matter of David Gardner, 
Charles Sadikoff, and Curtis M. Sheppard v. Tennessee Department of 
Human Services (Docket No. R-S/88-91). This panel was convened by the 
U.S. Department of Education pursuant to the Randolph-Sheppard Act (the 
Act), 20 U.S.C. 107d-1(a), upon receipt of a complaint filed by 
petitioners, Messrs. Gardner, Sadikoff, and Shepherd, on July 22, 1988. 
The Randolph-Sheppard Act governs the operation of vending facilities 
by blind vendors on local, State, and Federal property and provides a 
priority for blind individuals to operate those facilities on Federal 
property. Under this section of the Randolph-Sheppard 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 hearing from the State licensing agency (SLA). If the 
licensee is dissatisfied with the State agency's decision, the licensee 
may file a complaint with the Secretary, who is then required to 
convene an arbitration panel to resolve the dispute.

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, 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

    David Gardner, Charles Sadikoff, and Curtis M. Shepherd, 
complainants, are blind vendors licensed by the respondent, the 
Tennessee Department of Human Services, the SLA, pursuant to the 
Randolph-Sheppard Act, 20 U.S.C. 107 et seq. The SLA, through its 
Department of Rehabilitation, operates the Tennessee Vending Facility 
Program for blind vendors. The purpose of the program is to establish 
and support blind vendors operating vending facilities on Federal 
property. As the agency designated in Tennessee to carry out and manage 
the vending facility program established by the Act, the SLA duly 
promulgated rules and regulations to govern the State's program.

    In December 1985, the SLA's rules and regulations were revised 
regarding classifications of facility types and the licensing of 
vendors. Five categories were established for vending facilities (all 
vending, counter and vending, counter service, on-site food 
preparation, and cafeteria). All of the existing vending facilities 
were placed into one of these categories by the SLA and the Committee 
of Blind Vendors.

    In addition, all current licensed managers who had received 
training at the SLA's training center after April 1977 were certified 
in the type of facility they operated at the time the new rules were 
implemented. The new rules provided that, after certification to 
operate a category of vending facility, the manager was required to 
attend one training session at the SLA's training center in Smyrna, 
Tennessee, within a two-year period following certification and every 
two years thereafter in order for the manager to maintain 
certification. Failure by a vendor to comply with this rule precluded 
the manager from assuming a location as the result of a bid on a 
facility opening.
    Also, the rule change required that a manager be certified to 
operate a particular type of facility in order to obtain a promotion 
into that facility by bid or to obtain a transfer.
    The complainants were notified in January 1986 that each vendor's 
certification was to be terminated because each had failed to attend an 
Upward Mobility Training Session at the SLA's center during the two-
year period following their initial certification.
    Each complainant alleged individual circumstances that prohibited 
them from attendance at a training session. Also, each complainant 
asked the SLA to adopt a uniform standard for blind vendors who wanted 
to use an alternative method to obtain continuing certification if the 
manager was unable to attend the SLA's training sessions, which usually 
required overnight travel.
    On February 12, 1988, the complainants jointly filed for an 
evidentiary hearing, which was held on April 5, 1988, challenging the 
SLA's decision not to extend their certifications and requesting that 
the SLA allow them to show cause why they were unable to participate in 
the required training for recertification, as well as allow them to 
seek an alternative method of training.
    Mr. Shepherd operates a vending facility at the Moccasin Bend 
Psychiatric Hospital and has done so for approximately 12 years. He 
alleged at the evidentiary hearing that he was unable to attend 
training due to constant care of two elderly aunts who reside with him. 
However, the SLA had informed Mr. Shepherd in March 1988 that his 
certification would be extended due to his personal situation. Mr. 
Shepherd declined the SLA's offer of certification extension in favor 
of an evidentiary hearing, thereby attempting to establish a uniform 
procedure for exempting any manager from attending training at the 
SLA's center if a manager has problems that prohibit attendance.
    Mr. Sadikoff operates a vending facility at the Tennessee Valley 
Authority, and Mr. Gardner operates a vending facility at the Memphis 
Mental Health Institute. Both indicated they did not have confidence in 
anyone operating their respective vending locations during the three or 
four days they would be absent to attend mandatory SLA training for 
recertification.
    On June 3, 1988, the Hearing Officer rendered a decision that was 
subsequently adopted as final agency action by the SLA on June 17, 
1988. The decision of the Hearing Officer upheld the SLA's extension of 
Mr. Shepherd's certification for one year beyond the anticipated 
expiration due to the medical circumstances of his relatives. The 
Hearing Officer indicated that the SLA rules do not allow for a vendor 
to decline such an extension. The vendor may decline a particular type 
of certification; however, once certified to operate a particular type 
of facility, an extension of that certification is solely within the 
purview of the SLA. Also, the Hearing Officer ruled that the 
termination of both Mr. Sadikoff's and Mr. Gardner's certification was 
upheld. The evidence provided at the hearing clearly showed that 
neither vendor made any real effort during a two-year period following 
their current certification to attend a training session for 
recertification nor was a valid reason given for not complying with the 
SLA requirement.
    The complainants expressed dissatisfaction with the final agency 
action and filed a request for a Federal arbitration panel to be 
convened. An arbitration hearing was held on February 12, 1990.

Arbitration Panel Decision

    The central issue addressed by the arbitration panel was whether 
the State licensing agency can require retraining of licensed vendors 
at a specific rehabilitation center within the State in order to retain 
vendor certification to operate facilities.
    The panel in a majority opinion dismissed Mr. Gardner's complaint 
as moot because the parties agreed that he subsequently attended and 
completed the required four-day training course in Smyrna, thus 
complying with the SLA's requirement.
    Also, the arbitration panel concurred with the SLA's position of 
allowing complainant Sadikoff to continue to operate his current 
facility but declaring him ineligible for promotion, transfer, or 
demotion due to his refusal to take the required training. Complainant 
Sadikoff indicated his inability to find a person he could trust to 
manage his facility as the major factor in not completing the required 
training at Smyrna. The panel found this position to be unreasonable.
    The panel further ruled that the SLA acted properly in requiring 
Mr. Shepherd to attend upward mobility training and, further, acted 
properly and within its scope of authority in granting the extension of 
time for Mr. Shepherd to attend a training session. The panel member 
designated by the com- plainants dissented. That panel member 
interpreted the Act, 20 U.S.C. 107d-4, and the regulations in 34 CFR 
395.11 as requiring the SLA to provide training to licensed blind 
vendors and to make accommodations for those blind vendors who are 
unable to attend a regularly scheduled training session.
    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 23, 1994.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 94-21136 Filed 8-25-94; 8:45 am]
BILLING CODE 4001-01-P