Arbitration Panel Decision Under the Randolph-Sheppard Act, 52849-52850 [E8-21145]

Download as PDF 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 rmajette on PRODPC74 with NOTICES Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g., new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. Type of Review: New Collection. Title: Leveraging Educational Technology to Keep America Competitive: National Teacher Technology Study. Frequency: On Occasion. Affected Public: Individuals or household. Reporting and Recordkeeping Hour Burden: Responses: 2300. Burden Hours: 750. Abstract: The purpose of this study is to invesigate the technology experiences included in pre-service teacher preparation programs, as well as how teachers use technology in the classroom. A three-phase grounded theory research design employs (1) educational technology faculty and general induction teacher surveys, (2) educational technology faculty and accomplished technology-using teacher phone interviews, and (3) case studies of teacher education programs and accomplished technology-using teachers. Requests for copies of the information collection submission for OMB review may be accessed from http:// edicsweb.ed.gov, by selecting the ‘‘Browse Pending Collections’’ link and by clicking on link number. When you access the information collection, click on ‘‘Download Attachments’’ to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202–4537. Requests may also be electronically mailed to ICDocketMgr@ed.gov or faxed to 202–401–0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements 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 11SEN1 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: 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 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]


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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.

-----------------------------------------------------------------------

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