Braille Monitor January 1985
by James Gashel
In August, 1980, the Tennessee Committee of Blind Vendors voted by a ten to one margin to ask for NFB help in negotiating with state agency officials concerning the rules for the Business Enterprises Program. More than a majority of the Committee members were allied with the American Council of the Blind and its front group for vendors, the Randolph-Sheppard Vendors of America. Still, they were not able to get meaningful help (or any help at all) from their own organization. They turned to the NFB for aid, and we responded.
The negotiating process was split into two segments (referred to as "Phase I" and "Phase II") and extended over a period of nearly two years. Actually, it was not until March, 1984, that the Commissioner of the Rehabilitation Services Administration (RSA) in Washington, D.C., finally approved amendments to the Tennessee vending regulations negotiated during Phase II. But the negotiated rules, drafted with Federation assistance throughout, were approved.
Four years is a long time in almost any government bureaucracy, where turnover, reorganization, and reassignment of job duties are virtually the order of the day. Tennessee state government wins high marks in this respect. So it should not be too surprising that newly appointed officials in the Department of Human Services would again want to tinker with the rules for the state's Business Enterprises Program. And they did.
But the state officials also found an ally in the federal government. That was not surprising either. Mervin Darter (a staff member in the Atlanta regional office of the federal Rehabilitation Services Administration) opposed the Tennessee vending regulations. Mr. Darter monitors the vending facility programs in federal Region rv. He apparently felt burned when the Commissioner of RSA (his boss) in Washington approved Tennessee's rules over his (Mr. Darter's) objections.
So the stage was set for another round of battle over these rules. There were new state officials who wanted to alter them, and there was a disgruntled federal official in the regional office who would be willing to help. The strategy employed was to have that official (Mr. Darter) visit Tennessee for a "site review." It occurred in March, 1984. Then, on April 25, 1984, a report was sent to Tennessee from the RSA regional office--detailing findings, making certain conclusions, and recommending sweeping changes in the program. The changes just happened to be in those regulations that Mr. Darter objected to most.
This would all have been bad enough if strictly limited to Tennessee. But the recommendations clearly expressed a philosophy about the Randolph-Sheppard program that, if allowed to stand unchallenged, would affect the vendors of other states and eventually every state in the nation. This is how trends begin. First an idea emerges as an innocuous recommendation hidden away in a federal report. Then, if nobody objects, it becomes a matter of policy. Once expressed in policy, it will show up next in a federal regulation. Before you know it, the innocent rule that no one objected to in the first place is on its way to becoming federal law, like it or not.
In this instance we could not afford to remain silent. Doing so would eventually have brought grave consequences for all blind vendors, not just those in Tennessee. Under date of July 27, 1984, we formally asked George Conn (federal Commissioner of Rehabilitation Services) to withdraw the regional office report and modify it to conform with federal law and policy. The report was withdrawn. That was accomplished in early August. On August 17, 1984, we were advised that a revision was pending in RSA's central office. The correspondence follows:
Baltimore, Maryland
July 27, 1984
Mr. George Conn, Commissioner
Rehabilitation Services Administration
Office of Special Education and Rehabilitative Services
United States Department of Education
Dear George:
This is to request withdrawal and modification of a report (containing findings and recommendations) relating to the Tennessee Business Enterprises Program. The report (copy enclosed) was transmitted to the Tennessee State Licensing Agency by letter from Stephen J. Cornett dated April 25, 1984.
The report in question was prepared by Mervin L. Darter after a site review he made. We strongly object to many of the findings and most of the recommendations contained in this transmittal to the State Licensing Agency. Moreover, we do not believe that the advice and instructions conveyed in this report are consistent with expressed federal policy for the Randolph-Sheppard Program. Even so, the regional office of RSA for Region IV is apparently insisting that officials of the Tennessee State Licensing Agency bring the state's vending facilities program into conformity with the positions expressed in this report. If this occurs, state regulations which you have already approved would have to be changed to suit the personal whim of regional office staff.
Many of the objectionable recommendations are obvious to anyone who is at all familiar with federal policy relating to implementing the RandolphSheppard Program. Among the most outrageous of these are the following:
(1) Mr. Darter states: "During these negotiations, there has emerged confusion about the legal roles for the Committee and the licensing agency and uncertainty about the legal authority of the licensing agency." This assertion shows lack of understanding of the state's rules. For example, subsection (1) of section 1240-6-1-.02 reads in part, "It is understood that the agency bears final authority and responsibility for the administration and operation of the vending facilities program, including the assurance of continuing active participation by the Committee of Blind Vendors." This is the rule which you have approved. It clearly vests ultimate administrative responsibility in the agency, not in the Committee.
(2) The report finds that there are nine Tennessee vendors whose earnings exceeded $40,000 last year. Then the statement is made: "When income is at this level or beyond, there is at least the economic possibility of providing a living for more than one vendor." To my knowledge there is no federal policy (either expressed or implied) in support of the dual operator concept. Nothing in the federal law or regulations permits the imposition of a ceiling on vendor earnings from vending machines that are serviced and maintained by a blind licensee. Hence, all references in this report which imply or express a policy of limiting vendor earnings must be withdrawn.
(3) The report recommends "That now and hereafter, THE (Tennessee Business Enterprises) make individual decisions about each facility's staffing requirements, and that THE control all staffing changes." This recommendation flies in the face of established Tennessee rules which you have approved. For example, subsection (5) of Section 1240-6-8-.02 reads in part: "Where the licensed manager employs a staff, it shall be his responsibility to designate one of his employees to be in charge during such periods when he (the licensed manager) is not on duty." This and other regulatory provisions in Tennessee vest in the vendor (not in the agency) the determination of individual staffing needs. Moreover, nothing in federal law or policy supersedes Tennessee's regulation on this point which you have already approved.
(4) The report recommends that "Family members assist in the facility only with the approval of THE," and that "earnings subject to set-aside assessment should include 'family wages.'" Our objections are similar to those noted in paragraph (3) above. Vendors have a perfect right to employ family members and to compensate them or not to compensate them as they choose. Furthermore, if family members are employed and compensated, their wages are a legitimate, legally recognized, business expense. Accordingly, for this and the other reasons stated in paragraph (3) above, this recommendation should be withdrawn.
(5) The report recommends scrapping a seniority-based promotion system in favor of other factors, including ability, experience, and training required. Nothing in federal law or policy suggests that Tennessee's regulations (regulations which you have approved) are inappropriate. It falls within the state's discretion to establish the promotion system. The criteria utilized by Tennessee are not inconsistent with federal law or policy.
(6) The report recommends that steps be taken to achieve "equity in the program" in terms of vendor income. The report alludes to procedures, such as using set-aside and fair minimum return to achieve equity. However, in making its regulations which you have approved, Tennessee has deliberately chosen not to include fair minimum return as a use for set-aside funds (See 1240-6-6-.02). Although the report does not say so, the best way to improve vendor income is to establish more facilities at lucrative sites and to close marginal ones. This is far preferable to policies recommended by this report that seek to limit the income of some vendors in order to subsidize others. Nothing in federal law or policy requires a state to use the set-aside in the manner suggested by this report.
Again, I have noted above only the most glaring objections. However, it should be obvious that the entire report demands a thorough review in the RSA central office. In the meantime, withdrawal of the present report is absolutely essential in order to prevent state officials from pursuing incorrect, inappropriate, or otherwise improper actions. In short, both the state agency and the vendors in Tennessee should be advised immediately that this report has no force and effect whatsoever! Furthermore, any recommendations which are made in the future should be consistent with state regulations now approved by the RSA Commissioner! I must emphasize the critical nature and national implications of this situation. The report expresses a philosophy and direction regarding the RandolphSheppard program which is unacceptable and not consistent with the program as we know it today. Nonetheless, this fallacious report currently has official standing, and Tennessee officials are treating its recommendations seriously. They feel compelled to follow them given the strong language of Mr. Cornett's transmittal letter. This is why immediate steps must be taken by RSA and you personally to disavow the policy expressed in this report, to make review of its content, and to issue only such advice as is consistent with the federal law and its proper implementation.
Cordially yours,
James Gashel
Director of Governmental Affairs
National Federation of the Blind
Washington, D.C.
August 17, 1984
Dear Mr. Gashel:
Thank you for your letter regarding the report sent to the Tennessee State licensing agency by Stephen J. Cornett, RSA Regional Commissioner, Atlanta, dated April 25, 1984.
We have reviewed the report and also have concerns regarding its scope and coverage. The Tennessee Agency has been asked to defer any action on implementing recommendations in the report pending a rewrite of the report. The modification will clearly delineate between recommendations which are based on policy requirements from those that represent RSA advice and opinion on matters which are primarily the State's responsibility.
If I can be of further assistance, please let me know.
Sincerely,
George A. Conn, Commissioner
On August 24, 1984, a new RSA report was issued. Significant changes were made in each of the areas where we expressed objection. There was no attempt to impose income ceilings on vendors or to dictate staffing policies that would restrict each vendor 's right to hire and fire employees and to determine their compensation. There was no mention of restrictions to be placed on using family members as employees or that wages paid to family members should not be deductible in figuring set-aside. Using family members and paying them or not would continue to be at the vendor's discretion. If paid, the wages of family members would be deductible as a business expense just as with other employees.
The new report also avoided the earlier suggestion that large locations should be split up among two or more vendors. This was a recommendation Mr. Darter had made to decrease the income of the nine Tennessee vendors who he said were earning over $40,000 per year. Mr. Darter 's solution was to give more blind people jobs by doubling or tripling up in each location to share the income now being earned by one vendor. But his recommendation is not grounded in federal law or policy. Mr. Darter clearly views the Randolph-Sheppard program from a social-work welfare mentality.
For example, he states in his version of the report: "We have no argument against individual enterprise and responsibility. It is indispensable in this program. However, the Randolph-Sheppard Program is essentially different from all other enterprise programs which have VR (vocational rehabilitation) sponsorship. It is a State controlled program with continuing State and Federal financial and staff support. Its mission is not to establish entrepreneurs in business for themselves. There are other VR programs for that. Its responsibility is first to the Agency's rehabilitation program. Its goal is to provide as many opportunities for employment for oncoming VR clients as possible. The program is reserved for the most severely disabled client. This is the reason that there is support staff and ongoing financial support. Licensing agency policies sometimes take the opposite cast--that of appearing to protect the prerogatives of the present group of vendors. This would be a misplacement of their attention."
What a shocking philosophy to thousands of blind vendors who have thought of themselves as self-sufficient operators of their small business enterprises. Carry this philosophy to its logical extreme, and the RandolphSheppard Program becomes nothing more than a make-work supervised independent living center. Just an extension of rehab, according to Mr. Darter. But this segment of his report was also scrapped in the revised version. If it had not been, we would have had to renew our objections.
It should be noted that the Darter report, as well as the revised version, each found an apparent serious deficiency in the reporting and payment of vending machine income from two federal sites in Tennessee. Both reports recommend that corrective steps be taken. When all of the records are unscrambled or reconstructed, each of the blind vendors who may be entitled to vending machine income they did not receive should be paid the amount due. The discrepancies have apparently existed since 1976 at one site and 1977 at another.
But back to the issue at hand. We successfully resisted Mr. Darter's intrusion into policy matters that the Randolph-Sheppard Act leaves up to the states and the vendors, not up to the federal bureaucrats. Now the Tennessee Committee of Blind Vendors and officials of the state agency could decide on their own whether certain rules should be changed. It would not be dictated by RSA's regional office.
The vendors were not interested in making many changes. But it was clear that state officials were. The questions would be how many changes could be agreed upon and, even if a few, how significant these few changes would be. Would the vendors be bullied into "give backs," as sometimes happens to labor unions when companies plead for economic concessions? Or could the vendors hold the line and preserve the hard-won gains acquired during Phases I and II?
On October 24, 1984, we began to learn the answers to these questions. Formal negotiations between the blind vendors' subcommittee and program officials of Tennessee Business Enterprises began at 1:00 p.m. on that day. Those negotiations were concluded at about noon two days later. The first day's session with only a short dinner break, adjourned something after 10:00 p.m. The second day was another ten hours of negotiating. Then three hours the following morning, and all issues (other than the technicalities) were resolved. All sessions were conducted at the downtown Hilton Hotel in Knoxville, Tennessee. It is a matter of practice not to hold these sessions in the agency's offices in order to give neutral ground to everyone. I participated, as I did in Phases I and II, helping to suggest language and to formulate positions for the vendors. As in the past, this was done at the request of the Tennessee Vendors.
Federal rules state that the Committee of Blind Vendors is to participate actively in the development of major program and policy decisions affecting the overall operation and administration of the vending facilities program. This is a restatement of an identical provision found in the Randolph-Sheppard Act. But neither the law nor the regulations define "active participation." According to the Tennessee rules, however, active participation means "an ongoing process of negotiations between the state licensing agency and the Committee of Blind Vendors to achieve joint planning and approval of program policies, standards, and procedures, affecting the overall operation of the vending facility's program, prior to their implementation by the agency ... It is understood that the agency bears final authority and responsibility for the administration and operation of the vending facilities program, including the assurance of continuing, active participation with the Committee of Blind Vendors."
This definition became effective officially when the RSA Commissioner approved Tennessee's rules (the Phase II amendments) in March, 1984. So the Tennessee agency cannot arbitrarily make a rule without following the active participation process described in the definition. And in that regard, the key word is "negotiate." There must be a good faith attempt to "negotiate" rules. This is the joint responsibility of the blind vendors' committee and the agency. It is a process that most agencies are unaccustomed to.
Agency officials are used to more bureaucratic methods of decision making. They do not want the people telling them what should be done except at the time they (the agency officials) choose and only in the manner they prescribe. At such time appointed by the agency, there will be opportunity for public comment, where the only bureaucratic response permitted will be to clarify a point, not debate it. Then, after the comments are received and filed, the rules will be determined and announced by the agency. That's how rules are usually made.
But in the Randolph-Sheppard program, Congress mandated a committee of blind vendors for every state and vested the committee with certain powers and responsibilities. Not once did the term "advisory" arise in the law or in the Congressional intent. So the Committee must do more than just advise.
The Tennessee Committee (and a growing number of similar committees in other states) negotiates. The result is rules that have a balance between meeting agency management requirements and the needs of vendors engaging in business, not bureaucratic activity. This balance was particularly critical in the October, 1984, Tennessee negotiations. The result is that the rules will be changed slightly, but not unfairly or arbitrarily.
As an example, the agency agreed to make new training opportunities available to vendors. In exchange for this, the vendors will have to meet certain training obligations before competing for promotions based on seniority. There will be new penalties for vendors who are consistently late in paying set aside fees to the state. But in exchange, the time for filing the fees and monthly reports for all vendors is relaxed, and the vendors are no longer held accountable for slow mail service if their reports or fee payments are late because of holdups in the mail. Proof of mailing by a certain date each month will be the new rule.
It would not be practical or meaningful to catalogue all of the changes agreed to during these negotiations. The number was far fewer than the agency officials had hoped for. But the changes that will be made are ones that both groups (the agency and the vendors) agreed to make, and they will be made in the manner agreed upon.
So the process of active participation really works. The Tennessee program is not stifled by vendors who refuse to budge when things appear to be going their way. Nor is it managed by stubborn bureaucrats who refuse to submit their ideas to scrutiny at the bargaining table. This is not to say that the disagreements between vendors and agency officials are not sharp at times. They are. And sometimes the exchanges are heated. But this is all part of the give and take of negotiations. It could not be otherwise.
And, still, the American Council of the Blind waits in the wings, trying to figure out what is going on. So far as is reported on the public record, neither the ACB nor the RandolphSheppard Vendors of America have ever participated (actively or passively) in negotiating the vending regulations for any state. If so, what state is the model? I would like to see it.
We of the NFB, on the other hand, continue to work actively with the vendors in Tennessee and in other states to expand opportunity and cement gains. For instance, we recently concluded negotiations in Maryland, where the state has previously failed to enact regulations for the vending program as required. In Maryland, when the state agency released only a few limited (print-only) copies of proposed regulations, we published an alternative set (called the vendors alternative regulations). It was circulated to all vendors in the state. Copies were given out in Braille, tape, or print. In fact, it was the vendors alternative regulations, not the state's proposal, that everyone came to know. Of course, we were invited to participate actively in the negotiations with agency officials. When asked why the ACB had not also been invited, one agency spokesman explained that only the NFB cared enough to rewrite the state's proposal.
Meanwhile, we have preserved the gains previously made in Tennessee, with possibly a few slight improvements. Faced with an almost devastating federal report and state officials who encouraged it, the outcome is far better than the odds makers would have thought several weeks ago. Once again we have prevailed. A single vendor or even a whole group of vendors in any particular state could not have done it alone. This battle required the unique qualities and skill of our national movement, backed by our reputation for tough, decisive action. Why else did we pre-vail? We pick our battles, and we win them. That's why vendors and other every day blind people are joining our movement. The Tennessee vendors know the story, firsthand. Now all of them have another reason to join us. And so do all other vendors in the nation.