[Federal Register: May 30, 2001 (Volume 66, Number 104)]
[Notices]
[Page 29301-29303]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my01-41]
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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: Notice is hereby given that on August 22, 2000, an arbitration
panel rendered a decision in the matter of Jack Bedikian v. California
Department of Rehabilitation (Docket No. R-S/98-6). 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, Jack
Bedikian.
FOR FURTHER INFORMATION CONTACT: 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.
If you use a
[[Page 29302]]
telecommunications device for the deaf (TDD), you may call the TDD
number at (202) 205-8298.
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 in the preceding
paragraph.
Electronic Access to This Document
You may view this document, as well as all other Department of
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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.access.gpo.gov/nara/index.html.
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20
U.S.C. 107d-2(c)) (the Act), 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
This dispute concerns the alleged improper termination of Mr. Jack
Bedikian, a licensed blind vendor, from the Business Enterprise Program
of the California Department of Rehabilitation, the State licensing
agency (SLA).
A summary of the facts is as follows: Mr. Bedekian (complainant)
was a licensed manager under the SLA's Randolph-Sheppard vending
facility program. Beginning in 1991, complainant operated a cafeteria
and vending machine service at the Worldway Postal Center (Worldway).
The SLA alleged that, starting in 1993, it received complaints from
Worldway concerning health and service issues. Specifically, in 1995
the Safety Specialist of the Office of Safety and Health at Worldway,
who had the responsibility for investigating health and safety
complaints from its employees, requested that the SLA terminate Mr.
Bedikian's agreement to operate the facility based on complaints from
its employees.
Subsequently, the SLA issued a formal reprimand to complainant
allowing 30 days for corrective action. During this time, the SLA
alleged that it provided assistance to help complainant correct
deficiencies and meet the needs of the customers. The SLA noted some
improvement in the cafeteria operation. However, problems concerning
bug infestation of food and drink and moldy bread were still being
reported to the Safety Specialist.
In September 1997, the SLA and the Safety Specialist from Worldway
met again to review the complaints of the employees concerning the
freshness of food from both the cafeteria and the vending machines,
pricing, and rudeness of staff. Staff of the SLA's Business Enterprise
Program subsequently conducted an on-site review of complainant's
facility.
On December 11, 1997, the Los Angeles County Health Department
requested that complainant close his facility as the result of
violations in 17 categories, including unsafe food temperature,
handling and storage of food, rodent and insect problems, and improper
storage of cooking equipment and supplies. Other physical and
structural problems were identified that were the responsibility of
Worldway, which initiated corrective action to resolve these problems.
On December 16, 1997, the Los Angeles County Health Department gave
complainant conditional approval to reopen the cafeteria and vending
machine service serving packaged foods only. Complainant allegedly
disregarded this restriction and attempted to serve hot food although
hot water for utensil cleaning and hand washing was unavailable. On
December 17th, the SLA issued a termination notice to complainant,
which was later rescinded upon the SLA's learning of the conditional
approval received by complainant to reopen the facility.
The SLA alleged that it continued to receive complaints from
Worldway in January 1998. On January 26, 1998, staff of the SLA
performed an inspection of complainant's facility and found 24
sanitation deficiencies. Subsequently, on February 5, 1998, complainant
was notified of his license termination, removal from the Worldway
Postal Center, and his appeal rights.
Complainant requested a full evidentiary hearing on this matter,
which was held on March 27, 1998. In a decision dated April 16, 1998,
the Administrative Law Judge affirmed the SLA's decision to terminate
complainant's license and remove him from the Worldway Postal Center
cafeteria and vending machine service. It was this decision that
complainant sought to have reviewed by a Federal arbitration panel. An
arbitration hearing on this matter was held on August 20, 1999, and a
second hearing was held on December 14, 1999.
Arbitration Panel Decision
The central issue before the arbitration panel was whether the
actions taken by the California Department of Rehabilitation to
terminate the vending license of Mr. Bedikian and remove him from
managing the Worldway cafeteria and vending machine service were in
accordance with the Act (20 U.S.C. 107 et seq.), the implementing
regulations (34 CFR part 395), and applicable State rules and
regulations.
The panel ruled that complainant was essentially terminated for
poor performance in the operation of the Worldway cafeteria and vending
machine service.
Based upon the evidence presented, the panel determined that, while
complainant was not one of the more successful managers, there was no
demonstrable effort by the SLA, other than structural repairs, to
assist complainant in correcting problems and keeping the Worldway
cafeteria and vending machine service operating. Further, according to
the evidence received in the record, the panel determined that the SLA
and the postal facility cooperated in the removal of the complainant.
Therefore, the panel ruled that the actions taken by the California
Department of Rehabilitation to remove Mr. Bedikian from managing the
Worldway cafeteria and vending machine service were not in accordance
with the Act, implementing regulations, and State rules and
regulations. The law specifically requires the SLA to assist the vendor
in all reasonable ways to overcome the problems cited by the Federal
facility. The obligation on the SLA is an affirmative obligation, which
requires the State to do something affirmatively.
Additionally, the panel agreed that complainant was entitled to
compensatory damages for the loss of net profits from his business in
1995 and 1996, as well as attorney's fees and costs totaling
$59,570.44. The panel directed the SLA to place the complainant in the
next available facility that was likely to generate approximately the
same income.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
[[Page 29303]]
Dated: May 23, 2001.
Francis V. Corrigan,
Deputy Director, National Institute on Disability and Rehabilitation
Research.
[FR Doc. 01-13468 Filed 5-29-01; 8:45 am]
BILLING CODE 4000-01-P