[Federal Register Volume 60, Number 114 (Wednesday, June 14, 1995)]
[Notices]
[Pages 31289-31290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14474]



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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 13, 1992, an 
arbitration panel rendered a decision in the matter of James E. Waldie 
v. Alabama Division of Rehabilitation Services (Docket No. R-S/89-8). 
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, James E. Waldie, on April 12, 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 file a complaint 
with the Secretary of the U.S. Department of Education, 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, 600 Independence Avenue, SW., Room 3230, 
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.

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, James E. Waldie, is a blind vendor licensed by the 


[[Page 31290]]
respondent, the Alabama Division of Rehabilitation Services (ADRS), 
pursuant to the Randolph-Sheppard Act. ADRS is the SLA responsible for 
the operation of the Alabama vending facility program for blind 
individuals. The purpose of the program is to establish and support 
blind vendors operating vending facilities on Federal property. 
Beginning in May of 1985, Mr. Waldie operated a vending facility 
located in the Lyster Army Hospital, Fort Rucker, Alabama (Lyster 
Facility). Mr. Waldie alleged in his complaint that there was a problem 
with excessively high temperatures in the Lyster Facility. He also 
raised two other issues regarding facility safety and the sale of 
tobacco products. In addition, sometime late in 1985 or early in 1986, 
Mr. Waldie expressed a desire to expand into three buildings that were 
located near the Lyster Army Hospital building.
    Because these issues were not resolved by ADRS to Mr. Waldie's 
satisfaction, the complainant initiated administrative proceedings 
under ADRS regulations. On April 11, 1988, pursuant to ADRS rules and 
regulations, a fair hearing was conducted at Mr. Waldie's request. The 
decision rendered after the hearing was unfavorable to the complainant 
who subsequently requested a full evidentiary hearing, which was held 
on May 26, 1988. The State hearing officer upheld the administrative 
decision of ADRS in his opinion of August 2, 1988. The hearing officer 
stated that (1) the record did not indicate that Mr. Waldie had been 
denied the opportunity to expand his facility; (2) the determination of 
which product lines are to be sold at a vending facility is a decision 
to be made by the SLA and the Federal property manager; and (3) the 
ventilation and air circulation problems are the result of new product 
lines requiring machines that generate heat. Further, the hearing 
officer stated that the permit was not violated by the Federal agency, 
that ADRS had not violated its rules and regulations, and that evidence 
presented failed to establish a violation of any rule or regulation 
governing the Business Enterprise Program and did not prove any 
erroneous application of that program. The SLA's decision was affirmed.
    Mr. Waldie requested that the Secretary of Education convene an 
arbitration panel to review the issues. The arbitration hearing was 
held on June 27, 1991 and January 28, 1992. Two of the issues, the 
facility security and sale of tobacco products, were resolved during 
pre-hearing negotiations.
Arbitration Panel Decision

    The panel found that the main issue in this case concerned the 
question of whether the SLA had improperly dealt with the air 
circulation and ventilation at the Lyster Facility. After hearing 
testimony, the panel found that, in fact, the Lyster Facility did not 
provide proper ventilation. In determining whose responsibility it was 
to rectify the problem, the panel turned to the concept of satisfactory 
site as used in the Act and the regulations. Satisfactory site is 
defined in the Act in 20 U.S.C. 107a(d)(3) and in the regulations in 34 
CFR 395.1(q).
    The panel set out the two different circumstances under which a 
vending facility can be established. First, the panel considered 34 CFR 
395.30(a), which requires that Federal property managers take all steps 
necessary to assure that, wherever feasible, one or more vending 
facilities for operation by blind licensees shall be located on all 
Federal property. The second circumstance in which the establishment of 
a vending facility is discussed is in 34 CFR 395.31, which requires 
that, when a Federal property owner acquires or substantially renovates 
a property, the Federal property owner is required to provide a 
satisfactory site for the operation of a vending facility by a blind 
vendor.
    Because the Act and the regulations use the term ``satisfactory 
site'' only in the latter circumstance, the panel concluded that, if 
the Lyster Facility was established under the first circumstance, the 
definition of satisfactory site would not apply. While the panel found 
that no evidence was submitted at the hearing as to the circumstances 
under which the Lyster Facility was established, the panel reasoned 
that, even if the Lyster Facility was established under 34 CFR 395.30, 
the definition of satisfactory site found in the regulations would 
apply for two reasons. First, the parties have proceeded since the 
outset on the assumption that this language applies to the Lyster 
Facility. Second, the panel noted that both the SLA and the Federal 
property manager agreed, at the time the permit was issued, that the 
Lyster Facility constituted a satisfactory site.
    The panel concluded that there is a general ongoing obligation on 
the part of the Federal property manager to provide a satisfactory 
site. The panel further determined that the Lyster Facility must be 
properly cooled in order to be considered a satisfactory site.
    In recognizing that the Federal agency was not a party to the 
arbitration proceeding, the panel turned to the responsibilities of the 
ADRS in ensuring that the vending facility was a satisfactory site. The 
panel determined that, although the ADRS was not responsible for 
providing an air conditioning unit, it was obligated to urge the 
Federal agency to rectify the problem. Consequently, ADRS was directed 
to use vigorous means, including the use of arbitration under the Act, 
to compel the Federal property manager to provide sufficient cooling 
for the Lyster Facility.
    In considering the action of ADRS in responding to Mr. Waldie's 
request for expansion, the panel determined that ADRS has the 
obligation to reasonably pursue expansion sites for blind vendors and 
to use reasonable judgment in distributing any of those locations among 
qualified blind vendors. The panel concluded that ADRS acted reasonably 
in response to Mr. Waldie's request even though no expansion occurred, 
notwithstanding the plans to move the vending facility at some future 
date. Consequently, the panel delayed remedy on the matter for a period 
of time to determine whether a move of the facility would rectify the 
situation.
    Finally, the panel addressed the issue of retroactive damages and 
an award of attorney's fees raised by Mr. Waldie. The panel concluded, 
based on reasoning of the majority opinion in McNabb v. U.S. Department 
of Education, 862 F.2d 681 (8th Cir., 1988), that Mr. Waldie was not 
entitled to retroactive damages under the Act. The panel determined, as 
well, based on the decision in Alyeska Pipeline Service v. Wilderness 
Society, 421 U.S. 240 (1975), that an express provision in the Act was 
required to award attorney's fees to Mr. Waldie and that no such 
provision existed in the Randolph-Sheppard Act.
    One panel member dissented from the opinion of the majority as to 
the temperature issue. A second panel member dissented with respect to 
the expansion issue and the issue of the right of the blind vendor to 
seek retroactive damages and attorney's fees.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the United States Department of 
Education.

    Dated: June 8, 1995.
Judith E. Heumann,
Assistant Secretary, Office of Special Education and Rehabilitative 
Services.
[FR Doc. 95-14474 Filed 6-13-95; 8:45 am]
BILLING CODE 4000-01-P