FR Doc E9-19235[Federal Register: August 11, 2009 (Volume 74, Number 153)]
[Page 40172-40173]
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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 
March 1, 2009, an arbitration panel rendered a decision in the matter 
of Bernard R. Werwie, Sr. v. Pennsylvania Office of Vocational 
Rehabilitation, Case No. R-S/07-9. 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, Bernard R. Werwie, Sr.

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), 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 

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 


    Mr. Bernard R. Werwie, Sr., (Complainant) alleged violations by the 
Pennsylvania Office of Vocational Rehabilitation, the State licensing 
agency (SLA) of the Randolph-Sheppard Act (Act) and the implementing 
regulations in 34 CFR part 395. Specifically, Complainant alleged that 
the SLA improperly administered the Randolph-Sheppard Vending Facility 
Program in violation of the Act, implementing regulations under the 
Act, and State rules and regulations, when the SLA denied Complainant's 
bid to manage Facility 804 at the U.S. Post Office in 
Pittsburgh, Pennsylvania.
    On or about June 2006, Facility 804 became available due 
to the death of the previous vending facility manager. At that time, 
the SLA placed the facility out for bid on a regional satellite basis 
rather than on a Statewide or permanent basis. According to section 
2430.91 of the SLA's rules and regulations governing the Randolph-
Sheppard vending program, a satellite facility is one operated by a 
vendor at the same time the vendor is operating another assigned 
facility. The SLA is authorized to establish a satellite facility only 
on a temporary basis when the SLA can demonstrate that it does not have 
a qualified blind vendor to place on a permanent basis.
    The SLA alleged that, because there was a crisis situation at 
Facility 804, its decision to place the facility out for bid 
on a regional satellite basis rather than on a Statewide or permanent 
basis was within its discretion under its State rules and regulations. 
Further, the SLA contended that its decision was sanctioned by the 
Elected Committee of Blind Vendors (ECBV), which pursuant to the Act 
and 34 CFR part 395, is an elected body fully representative of all 
blind vendors in a State.
    A State fair hearing on this matter was held on March 19, 2007. On 
April 18, 2007, the hearing officer issued a decision denying 
Complainant's grievance. It was this decision that Complainant sought 
review of by a Federal arbitration panel.
    According to the arbitration panel, the issues to be resolved were: 
(i) Whether the Pennsylvania Office of Vocational Rehabilitation's 
decision to bid Facility 804 on a regional basis violated the 
Randolph-Sheppard Act, the implementing regulations, and State program 
rules and regulations; and (ii) if there was a violation, what is the 

Arbitration Panel Decision

    After hearing testimony and reviewing all of the evidence, the 
panel majority ruled that the Pennsylvania Office of Vocational 
Rehabilitation's decision was a reasonable, good faith attempt to 
remedy a bad situation, and was done in the best interest of all 
licensed blind vendors in the State of Pennsylvania. The panel denied 
Complainant's request to be placed without delay to Facility 
804. Additionally, the panel denied his request for monetary 
    One panel member dissented. Specifically, this panel member 
believed that the SLA unlawfully designated Facility 804 as a 
satellite facility and that the Complainant should have been 
compensated for loss of revenue had he been the successful bidder as 
well as for attorney's fees incurred in his seeking Federal 
    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:
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about

[[Page 40173]]

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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:

    Delegation of Authority: The Secretary of Education has delegated 
authority to Andrew J. Pepin, Executive Administrator for the Office of 
Special Education and Rehabilitative Services, to perform the functions 
of the Assistant Secretary for Special Education and Rehabilitative 

    Dated: August 6, 2009.
Andrew J. Pepin,
Acting Assistant Secretary for Special Education and Rehabilitative 
[FR Doc. E9-19235 Filed 8-10-09; 8:45 am]