Arbitration Panel Decision Under the Randolph-Sheppard Act, 52849-52850 [E8-21145]
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Federal Register / Vol. 73, No. 177 / Thursday, September 11, 2008 / Notices
should be electronically mailed to
WASHINGTONICDocketMgr@ed.gov
202–401–1097. Individuals who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 1–800–877–
8339.
52849
Dated: September 8, 2008.
Angela C. Arrington,
IC Clearance Official, Regulatory Information
Management Services, Office of Management.
AGENCY:
Office of Elementary and Secondary
Education
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.
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.
Background
Mr. David Zelickson (complainant)
alleged violations by the California
Department of Rehabilitation, the state
licensing agency (SLA) of the RandolphSheppard 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
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
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VerDate Aug<31>2005
14:21 Sep 10, 2008
Jkt 214001
[FR Doc. E8–21230 Filed 9–10–08; 8:45 am]
BILLING CODE 4000–01–P
DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the
Randolph-Sheppard Act
Department of Education.
Notice of arbitration panel
decision under the Randolph-Sheppard
Act.
ACTION:
PO 00000
Frm 00041
Fmt 4703
Sfmt 4703
E:\FR\FM\11SEN1.SGM
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rmajette on PRODPC74 with NOTICES
52850
Federal Register / Vol. 73, No. 177 / Thursday, September 11, 2008 / Notices
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
VerDate Aug<31>2005
14:21 Sep 10, 2008
Jkt 214001
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: https://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: https://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
DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the
Randolph-Sheppard Act
Department of Education.
Notice of arbitration panel
decision under the Randolph-Sheppard
Act.
AGENCY:
ACTION:
SUMMARY: The Department of Education
(Department) gives notice that on May
15, 2008, an arbitration panel rendered
a decision in the matter of Arizona
Department of Economic Security,
Rehabilitation Services Administration
v. United States Postal Service (Case No.
R–S/06–3). This panel was convened by
the Department under 20 U.S.C. 107d–
1(b), after the Department received a
complaint filed by the petitioner, the
Arizona Department of Economic
Security, Rehabilitation Services
Administration.
FOR FURTHER INFORMATION CONTACT: You
may obtain a copy of the full text of the
PO 00000
Frm 00042
Fmt 4703
Sfmt 4703
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.
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.
SUPPLEMENTARY INFORMATION:
Background
The Arizona Department of Economic
Security, Rehabilitation Services
Administration, the State Licensing
Agency (SLA) alleged violations by the
United States Postal Service (USPS) of
the Randolph-Sheppard Act (Act), and
the implementing regulations in 34 CFR
part 395. Specifically, the SLA alleged
that USPS improperly denied the SLA’s
request to establish vending facilities
comprised of vending machines at
postal locations in Mesa and Tucson,
Arizona in violation of the priority
provisions of the Act at 20 U.S.C.
107(b).
On October 22, 2002, USPS notified
the SLA that the Mesa Postal Service
was seeking a new vendor for nine
postal locations in Mesa, Arizona. On
October 29, 2002, the SLA informed
USPS that it was exercising its priority
under the Act and would be providing
vending services to the nine Mesa postal
locations. However, on December 16,
2002, USPS sent the SLA a letter to
notify them of a change in the projected
start up date for the SLA to begin
operating the Mesa vending locations.
On April 22, 2003, USPS again
notified the SLA that it was in need of
vending food service for 15 postal
locations in Tucson, Arizona. Following
this notification, the SLA and USPS
staff met on June 18, 2003. At that time,
USPS informed the SLA that it had
issued a directive stating that each of
the 15 Tucson vending locations would
have a permit and each location would
require a separate blind vendor to
manage the facility.
On July 31, 2003, the SLA sent a letter
to USPS indicating that it did not intend
E:\FR\FM\11SEN1.SGM
11SEN1
]]>Agencies
[Federal Register Volume 73, Number 177 (Thursday, September 11, 2008)]
[Notices]
[Pages 52849-52850]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21145]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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:
https://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: https://www.gpoaccess.gov/
nara/.
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
