Arbitration Panel Decision Under the Randolph-Sheppard Act, 43676-43677 [2011-18448]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Notices]
[Pages 43676-43677]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18448]


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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 
March 18, 2011, an arbitration panel rendered a decision in the matter 
of Sam Tocco v. Michigan Commission for the Blind, Case no. R-S/08-6. 
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, Sam 
Tocco.

FOR FURTHER INFORMATION CONTACT: You can 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 can 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

    Sam Tocco (Complainant) alleged violations by the Michigan 
Commission for the Blind, the State licensing agency (SLA), under the 
Act and its implementing regulations in 34 CFR part 395. Complainant 
alleged that the SLA violated the Act, the implementing regulations, 
and State rules and regulations by terminating his vending operator's 
license at the United States Postal Service's Pontiac vending route 
(Pontiac vending route).
    Specifically, Complainant became a Randolph-Sheppard vendor in 
2003. Beginning in 2006, he was promoted to the Pontiac vending route. 
In August and December 2006, the SLA was prepared to revoke 
Complainant's operating license for a variety of reasons that were not 
relevant to the subject arbitration. In August 2006, Complainant signed 
a probationary agreement with the SLA.
    However, in the later part of 2007, Complainant again experienced 
compliance issues and the SLA and Complainant entered into another 
probationary agreement on September 19, 2007 (2007 probationary 
agreement), to resolve various outstanding issues. On January 15, 2008, 
the SLA informed Complainant that he had violated the terms of the 2007 
probationary agreement and revoked his operating license, effective 
January 24, 2008, for failure to pay an annual health license fee.
    Complainant then requested a full evidentiary hearing from the SLA 
on this matter. However, the SLA asserted that Complainant waived his 
right to an evidentiary hearing and other due process protections by 
signing the 2007 probationary agreement. Shortly thereafter, 
Complainant filed another request with the SLA for a full evidentiary 
hearing. On January 23, 2008, the SLA again denied Complainant's 
request for an evidentiary hearing.
    On March 10, 2008, Complainant's representative filed a request 
with the Department to convene a Federal arbitration panel. On March 
26, 2008, the Department responded to Complainant's request informing 
Complainant and the SLA that, while Complainant did not qualify for 
arbitration as he had not been provided

[[Page 43677]]

a full evidentiary hearing, Complainant had a statutory right to a full 
evidentiary hearing. The Department directed the SLA to schedule a full 
evidentiary and informed Complainant's representative if, after the 
full evidentiary had been conducted Complainant was still dissatisfied 
with the results, he could resubmit his request for Federal 
arbitration.
    On September 3, 2008, the SLA provided Complainant a full 
evidentiary hearing conducted before an Administrative Law Judge (ALJ). 
On October 30, 2008, the ALJ issued her decision finding that 
Complainant was in compliance with the 2007 probationary agreement and 
also finding that his failure to pay the health license fee did not 
constitute a violation. As a remedy, the ALJ recommended that the SLA 
reinstate Complainant's operating license and that he be assigned a 
suitable vending location as soon as possible. In noting that 
Complainant had significant difficulties in the operation of the 
Pontiac vending route, the ALJ also recommended, without assigning any 
fault to Complainant or the SLA, that Complainant be assigned a better 
established and less demanding vending route.
    On December 12, 2008, the SLA reviewed the ALJ's decision. The SLA 
adopted in part and rejected in part the ALJ's recommendations as final 
agency action. Specifically, the SLA accepted the recommendation to 
reinstate Complainant's operating license but rejected the ALJ's 
recommendation to assign Complainant to a suitable site that was a 
better established or less demanding route. Instead, the SLA required 
that Complainant bid on a vending location in accordance with existing 
SLA transfer and promotion rules and regulations.
    On February 17, 2009, Complainant's representative again filed a 
request for Federal arbitration, alleging that the final agency action 
by the SLA did not provide an adequate remedy for the harm Complainant 
had incurred from the revocation of his operating license. On April 29, 
2010, a Federal arbitration hearing was held.

Arbitration Panel Decision

    After reviewing all of the evidence and testimony, the panel 
unanimously ruled that Complainant was entitled to receive a priority 
bid. Thus, the panel directed the SLA to waive the existing conditions 
governing the award of vending facilities and to consider Complainant 
the successful bidder on any vending facility or vending route for 
which he would be qualified and certified for a period of 12 months 
commencing with the date of the panel's decision. This ruling was 
considered ``an extraordinary remedy'' by the panel, based upon the 
specific circumstances of Complainant's case in which he lost his 
previous vending route as a result of the erroneous license revocation. 
The panel clearly indicated, however, that this case should not serve 
as a precedent for future cases because of these unique circumstances. 
Also, the panel denied the remedies requested by Complainant with 
respect to compensatory damages, punitive or exemplary damages, and 
restoration of Complainant's retirement benefits to his program pension 
plan.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the Department.
    Electronic Access to This Document: 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 via the Federal Digital System 
at: https://www.gpo.gov/fdsys. At this site you can view this document, 
as well as all other documents of this Department published in the 
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use PDF you must have Adobe Acrobat Reader, which is available free at 
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    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: July 18, 2011.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2011-18448 Filed 7-20-11; 8:45 am]
BILLING CODE 4000-01-P