Arbitration Panel Decision Under the Randolph-Sheppard Act, 6604-6605 [2011-2638]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 76, Number 25 (Monday, February 7, 2011)]
[Notices]
[Pages 6604-6605]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-2638]


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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 
September 28, 2010, an arbitration panel rendered a decision in the 
matter of Ron Armstrong v. Ohio Rehabilitation Commission, Bureau of 
Services for the Blind and Visually Impaired, Case no. R-S/08-4. 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, Ron 
Armstrong.

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), call the 
Federal Relay Service (FRS), toll-free, at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
accessible 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 (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

    Ron Armstrong (Complainant) alleged violations by the Ohio 
Rehabilitation Services Commission, Bureau of Services for the Blind 
and Visually Impaired, the State licensing agency (SLA), under the Act 
and implementing regulations in 34 CFR part 395. Specifically, 
Complainant alleged that the SLA improperly administered the Ohio 
Randolph-Sheppard Vending Facility Program in violation of the Act, 
implementing regulations under the Act, and State rules and 
regulations. Complainant further alleged that the SLA's selection 
committee denied him an opportunity to manage Vending Facility 495 by 
inappropriately applying selection criteria that led to another 
candidate being selected to manage Vending Facility 495.
    Prior to Complainant applying for Vending Facility 495 in 2006, he 
had managed the facility part-time for four years. Complainant 
requested a State fair hearing on the SLA's decision to award Vending 
Facility 495 to another candidate. A State fair hearing on this matter 
was held. On December 8, 2008, the hearing officer issued a decision 
denying Complainant's grievance. On January 6, 2009, the SLA adopted 
the hearing officer's decision as final agency action. Complainant 
sought review of the SLA's final agency by a Federal arbitration panel.
    According to the arbitration panel, the issues to be resolved were: 
(1) Whether the selection committee violated the Ohio Administrative 
Code (OAC) when it applied the 2006 labor goal to determine a labor 
percentage for 2005 for both Complainant and the other candidate when 
there did not exist a labor goal in 2005 and the 2006 rule required 
application of labor percentages for two years; (2) Whether the 
selection committee considered all of the documents in both the 
Complainant's and the other candidate's vending operator files as 
required by the OAC; (3) Whether the selection committee invited the 
grantor (building representative) to participate on the selection 
committee as required by the OAC; and (4) What the remedy should be if 
the provisions of the Act or any of the implementing regulations and 
state rules and regulations were violated.

[[Page 6605]]

Arbitration Panel Decision

    After hearing testimony and reviewing all of the evidence, the 
panel issued its ruling. On issue number one, the panel found that the 
selection committee convened in 2006 to select a manager for Vending 
Facility 495 was required to determine each candidate's labor 
percentage for the previous two years.
    However, the panel concluded that the problem with implementation 
of the 2006 rule was that neither the Complainant nor the other 
candidate had a labor percentage goal for 2005. In order to remedy the 
two year requirement, the selection committee decided to apply the 
Complainant's and the other candidate's labor goals in 2006 to their 
vending facilities in 2005, thus providing a labor percentage for the 
two-year period.
    The arbitration panel found that this action of the selection 
committee was not patently unfair or an abuse of discretion and thus 
was not in violation of state rules and regulations or the Act and 
implementing regulations.
    Regarding issue number two, the panel determined that the record 
reflected complaints about the successful candidate's performance at 
prior facilities. However, the evidence heard by the panel did not 
indicate that the SLA or any of its staff arbitrarily removed 
documentation from the successful candidate's file or failed to submit 
records in his vending operator file to the selection committee. Thus, 
based upon testimony of the selection committee members that they were 
aware of the successful candidate's problems at prior facilities, the 
arbitration panel ruled that the successful candidate's problems 
occurred several years earlier and his lack of problems and his 
improvement over recent years merited the level of scoring that he 
received from the selection committee.
    Concerning issue number three, the panel found that there was no 
dispute that the grantor of Vending Facility 495 did not serve on the 
selection committee. Based on the evidence heard by the panel, the 
grantor was contacted via e-mail by the SLA and indicated that he 
believed he was invited to serve on the selection committee, but the 
grantor did not recall why he did not attend. The Complainant 
interpreted the grantor's lack of attendance to mean that the grantor 
was not invited by the SLA to participate on the selection committee in 
violation of the OAC.
    However, the panel in considering the hearing record as a whole 
determined that the Complainant did not meet his minimum burden of 
proof on this issue.
    Finally, regarding issue number four, the panel found no violations 
of the Act, implementing regulations under the Act, or the state rules 
and regulations. Thus, the panel denied Complainant's grievance.
    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 can 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.

    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: February 2, 2011.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2011-2638 Filed 2-4-11; 8:45 am]
BILLING CODE 4000-01-P