FR Doc 2011-2638[Federal Register: February 7, 2011 (Volume 76, Number 25)]
[Notices]
[Page 6604-6605]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07fe11-42]
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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: http://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:
http://www.gpoaccess.gov/nara/index.html.
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