[Federal Register: June 15, 1999 (Volume 64, Number 114)]
[Page 32031-32032]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice of Arbitration Panel Decision Under the Randolph-
Sheppard Act.


SUMMARY: Notice is hereby given that on June 25, 1998, an arbitration 
panel rendered a decision in the matter of Michael R. Underhill v. 
Texas Commission for the Blind (Docket No. R-S/97-16). This panel was 
convened by the U.S. Department of Education pursuant to 20 U.S.C. 
107d-1(a), upon receipt of a complaint filed by petitioner, Michael 

FOR FURTHER INFORMATION: A copy of the full text of the arbitration 
panel decision may be obtained from George F. Arsnow, U.S. Department 
of Education, 400 Maryland Avenue, SW., room 3230, Mary E. Switzer 
Building, Washington DC 20202-2738. Telephone: (202) 205-9317. 
Individuals who use a telecommunications device for the deaf (TDD) may 
call the TDD number at (202) 205-8298.
    Individuals with disabilities may obtain this document in an 
alternate format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed in the preceding 

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 either of the 
following sites:


To use the PDF you must have the Adobe Acrobat Reader Program with 
Search, which is available free at either of the previous sites. If you 
have questions about using the 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://

SUPPLEMENTARY INFORMATION: Pursuant to 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.


    This dispute concerns the alleged improper application by the Texas 
Commission for the Blind, the State licensing agency (SLA), of its 
transfer and promotion policies. Specifically, the complainant, Michael 
Underhill, alleges that he was denied an opportunity to bid on a 
military base food service contract under the SLA's special assignment 
    A summary of the facts is as follows. Complainant is a licensed 
manager under the SLA's Randolph-Sheppard vending facility program. In 
March, 1995, complainant was selected to receive a prospective military 
base food service assignment. Complainant ranked fourth on a list of 
five managers who qualified for such an assignment based on a special 
selection process to receive military base food service contracts. This 
special selection process was developed by the SLA in conjunction with 
the Elected Committee of Blind Managers.
    In January 1997, the SLA allegedly ended the special assignment 
process for these military base contracts over the objections of the 
Elected Committee of Blind Managers, thus terminating complainant's 
eligibility to bid on the next available military base contract.
    The SLA alleged that it had the authority to end the special 
assignment process because the unusual circumstances that merited use 
of the special assignment process no longer existed.
    The complainant requested and received a full evidentiary hearing, 
which was held on May 19, 1997. In a decision dated June 2, 1997, the 
Administrative Law Judge (ALJ) ruled that the SLA's decision to end the 
special assignment process for the military base contract should be 
reversed and that the special assignment process should be reinstated 
until all of the licensed managers who qualified for such an assignment 
received a military base assignment or withdrew from consideration.
    In a letter dated June 23, 1997, to the complainant, the SLA 
adopted the ALJ's decision in part by reinstating the special 
assignment process for Fort Bliss, Reese Air Force Base, and Fort Hood 
and stipulated that this process would remain in effect until one of 
the military base contracts was available. At that time, the SLA would 
determine whether it was in the best interest of the Randolph-Sheppard 
vending program to eliminate this special assignment process. In 
addition, the SLA affirmed

[[Page 32032]]

that the original selection list would remain in effect.
    The complainant requested review of the SLA's stipulated decision 
by a Federal arbitration panel. The panel was convened on April 17, 

Arbitration Panel Decision

    The issue before the arbitration panel was whether the SLA's 
stipulated decision to make a determination concerning the continuation 
of the special assignment process at the time a military base became 
available was inconsistent with the ALJ's determination.
    The arbitration panel ruled that, at the time a military base 
contract became available, there may be a compelling reason that would 
benefit both the program and the complainant that would justify not 
assigning complainant to a military base food service facility.
    The panel further ruled that the SLA had the authority to end an 
exceptional practice promulgated under the Business Enterprise Program 
(BEP) Manual and pursuant to the Act and implementing regulations. 
However, the panel found that complainant's reliance on this exception 
entitled him to special consideration when the next military base 
facility becomes available. If he applies for such an assignment and is 
not selected, but is determined to be qualified to successfully operate 
the facility, the SLA will use the authority granted to it under the 
special assignment provision of the BEP Manual to assign Mr. Underhill 
to the facility. The panel ruled that complainant need not be provided 
this priority if he applies for a new facility under the regular 
selection process.
    One panel member dissented.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the U.S. Department of Education.

    Dated: June 9, 1999.
Curtis L. Richards,
Acting Assistant Secretary for Special Education and Rehabilitative 
[FR Doc. 99-15064 Filed 6-14-99; 8:45 am]