[Federal Register Volume 75, Number 155 (Thursday, August 12, 2010)]
[Notices]
[Pages 48956-48957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19949]
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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 U.S. Department of Education (Department) gives notice
that on April 27, 2009, an arbitration panel rendered a decision in the
matter of Jerry Manganello, et al. v. Pennsylvania Office of Vocational
Rehabilitation, Case No. R-S/07-7. 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, Jerry Manganello, et al.
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 (the Act), 20 U.S.C. 107-2(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
Jerry Manganello, et al. (Complainants) alleged violations of the
Act and its implementing regulations in 34 CFR part 395 by the
Pennsylvania Office of Vocational Rehabilitation, the State licensing
agency (SLA). Specifically, Complainants alleged that the SLA
improperly administered the Randolph-Sheppard Vending Facility Program
as provided by the Act, implementing regulations, and State rules and
regulations by failing to comply with a unanimous vote of the Committee
of Blind Vendors (CBV) concerning unassigned vending machine income and
the payment of set-aside fees to the SLA.
The SLA, in the overall operation and administration of
Pennsylvania's Randolph-Sheppard vending program, established several
funds to receive monies from various sources. Fund 33 receives monies
paid by blind vendors from the net profits of vending facilities and
vending machine income on Federal property. Fund 650 receives monies
from vending machines operated by blind vendors at interstate highway
rest areas.
In 1998, the CBV by referendum agreed to use 85 percent of the
funds in Fund 650 for medical benefits and to permit the SLA to use the
balance for programmatic purposes. However, the CBV alleged that, in
practice, the SLA used 15 percent of the funds in Fund 650 to support
SLA program staff salaries.
Conversely, the SLA alleged that between 1998 and 2005, it asked
the CBV to approve the use of part of the accrued balance in Fund 650
for programmatic purposes and that whenever the SLA's request was not
approved, the money remained in Fund 650.
In 2005, because of increased health insurance premiums, CBV
unanimously
[[Page 48957]]
passed three referenda. The first referendum requested that the SLA
forego its 15 percent of the annual revenue that accrued in Fund 650.
Instead, the SLA would apply 100 percent of the revenue to the vendors'
health insurance plan. The second referendum requested that the SLA
transfer the unused balance of its 15 percent in Fund 650 to the
vendors' health insurance account. The third referendum requested that
the SLA transfer $650,000 from Fund 33 to the vendors' health insurance
account so the money could be used to cover an impending shortage.
The Complainants alleged, however, that the SLA did not comply with
the three referenda and actually transferred a substantial sum of the
money to its own account to pay retroactive salaries of program staff.
A State fair hearing on this matter was held. On May 6, 2007, the
hearing officer issued a decision affirming the CBV's complaint,
finding that the SLA had violated CBV's right to actively participate
in the SLA's administrative decision making concerning the collection
and use of unassigned vending machine income and set-aside funds. The
hearing officer ruled that (1) the SLA should return funds collected
from the unassigned vending machine income used to pay for staff
salaries, and (2) in all future major decisions, the SLA should allow
active participation by the CBV.
Following the hearing officer's decision, the SLA filed a petition
for review with the Commonwealth Court of Pennsylvania. On January 28,
2008, the court denied the SLA's appeal. The SLA then filed a motion
for re-argument, which was denied by the court on March 14, 2008.
Subsequently, the CBV requested review and enforcement by a Federal
arbitration panel of the May 7, 2007, hearing officer's decision.
Arbitration Panel Decision
After a hearing at which all testimony was presented and following
extensive negotiations, the panel majority and the parties were able to
reach a settlement and entered into a Settlement agreement. The panel
ruled that the Settlement Agreement would become the panel's final
Decision and Award. Additionally, the parties have agreed that the
terms of the Settlement Agreement should not be revealed or disclosed.
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:
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: August 9, 2010.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2010-19949 Filed 8-11-10; 8:45 am]
BILLING CODE 4000-01-P