[Federal Register Volume 73, Number 177 (Thursday, September 11, 2008)]
[Notices]
[Pages 52849-52850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21145]


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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]
BILLING CODE 4000-01-P