[Federal Register: November 30, 2004 (Volume 69, Number 229)]
[Notices]
[Page 69593-69594]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30no04-45]
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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 gives notice that on February 3, 2003, an
arbitration panel rendered a decision in the matter of North Carolina
Department of Human Resources, Division of Services for the Blind v.
United States Postal Service (Docket No. R-S/98-8). This panel was
convened by the U.S. Department of Education, under 20 U.S.C. 107d-
1(b), after the Department received a complaint filed by the
petitioner, North Carolina Department of Human Resources, Division of
Services for the Blind.
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 telecommunication device for the deaf (TDD), you may call the
Federal Information Relay Services (FIRS) at 1-800-877-8339.
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.
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
property.
Background
This dispute concerns the alleged violation by the United States
Postal Service (USPS) of the priority provisions of the Act (20 U.S.C.
107 et seq.) and the implementing regulations in 34 CFR part 395 in
awarding a contract to a private vending company at the Greensboro
Processing and Distribution Center (P&DC) in Greensboro, North
Carolina.
A summary of the facts is as follows: Beginning in 1995, the North
Carolina Department of Human Resources, Division of Services for the
Blind, the State licensing agency (SLA), operated a cafeteria on the
second floor of the P&DC and also various vending machines in a break
area and swing room on the first floor of the building under a contract
agreement with USPS. The cafeteria included a hot food line and was
staffed by attendants. Later, the cafeteria operation became not as
profitable as the SLA desired, and discussions took place between the
SLA and USPS wherein the SLA proposed closing the attendant hot food
cafeteria and replacing it with a facility comprised of vending
machines.
In January 1998, USPS issued a request for proposal (RFP) for a
vending machine facility at P&DC, the same type of facility that the
SLA had previously discussed with USPS. The SLA received the RFP and
proposed to USPS that a single blind licensee be allowed to operate all
vending operations at the P&DC under a permit agreement rather than a
contract.
After the SLA's proposal, USPS declined to enter into a permit
agreement with the SLA, and the SLA elected not to submit a response to
the RFP. USPS then awarded a contract for the operation of the new
vending machine facility to a private vending company.
Thereafter, the SLA filed a complaint with the Secretary of
Education requesting the convening of a Federal arbitration panel. In
its complaint, the SLA alleged that USPS violated the priority
provisions of the Act and implementing regulations in awarding the
contract to a private vending company. The SLA further alleged that the
Act specifically recognizes that the operation of vending machines are
to be under a permit agreement, while the operation of a cafeteria is
required to be under a contract.
As a result of this dispute, an arbitration panel was convened, and
a hearing on this matter was held on June 6, 2000.
Arbitration Panel Decision
The issue heard by the panel was whether USPS had violated the Act
(20 U.S.C. 107 et seq.) and the implementing regulations in 34 CFR part
395 in awarding a contract to a private vending company to operate the
vending machine facility at P&DC.
After considering all of the evidence, the majority of the panel
ruled that the P&DC vending facility was not a cafeteria as defined by
the Act and implementing regulations. The panel stated that the
regulations in Sec. 395.1(d) define a cafeteria as a facility
``capable of providing a broad variety of prepared foods and beverages
(including hot meals) primarily through the use of a line where the
customer serves himself from displayed selections.'' On this basis, the
panel ruled that USPS was required to approve the SLA's permit
application for P&DC or indicate in writing to the Secretary of
Education the reasons for refusing approval.
The panel also determined that the vending facility at P&DC
operated by the private vending company and comprised of vending
machines was being operated in direct competition with vending machines
operated by the SLA. Moreover, because the private vending company's
vending machines were readily accessible to most or all of the
employees at P&DC, the panel ruled that the SLA was entitled to receive
100 percent of all vending machine income
[[Page 69594]]
collected by the private vending company as provided by the regulations
in 34 CFR 395.32(b).
Accordingly, the panel made the following award: (1) USPS should
terminate at the earliest practicable date the contract with the
private vending company, thus allowing for an SLA-licensed blind vendor
to operate the vending machine facility at P&DC; (2) USPS should
promptly approve an appropriate permit agreement with the SLA for the
continued operation of the vending facility at P&DC; and (3) USPS
should pay to the SLA all sums received from the private vending
company for the operation of the vending machines at P&DC and all sums
to be received until the termination of the contract with the private
vending company.
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.
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:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using 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://www.gpoaccess.gov/nara/index.html
.
Dated: November 24, 2004.
Troy R. Justesen,
Acting Deputy Assistant Secretary for Special Education and
Rehabilitative Services.
[FR Doc. E4-3378 Filed 11-29-04; 8:45 am]
BILLING CODE 4000-01-P