EXTENDICARE HEALTH SERVICES, INC. doing business as Glenshire Woods Personal Care Home v. DISTRICT 1199P SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC Extendicare…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4768
EXTENDICARE HEALTH SERVICES, INC.
doing business as
Glenshire Woods Personal Care Home
v.
DISTRICT 1199P SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL-CIO, CLC
Extendicare Health Services, Inc.,
Glenshire Woods Personal Care Home,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 05-cv-02676)
District Judge: Honorable Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
October 22, 2007
Before: SLOVITER, CHAGARES and HARDIMAN, Circuit Judges
(Filed: October 26, 2007)
OPINION
SLOVITER, Circuit Judge.

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This case presents the question whether a labor arbitrator’s award reinstating a
terminated employee, entered pursuant to a collective bargaining agreement between a
union and a personal care home, should be vacated as contrary to public policy.
I. Background
Glenshire Woods Personal Care Home (“Glenshire Woods”), which is operated by
Extendicare Health Services, Inc., is a home that provides personal care services to elderly
residents. Glenshire Woods hired Tracey Poth on May 16, 1998 to work as a medication
aide. Poth had access to controlled substances in her capacity as a medication aide.
On July 1, 1998, the Pennsylvania General Assembly amended the Older Adult
Protective Services Act, 35 Pa. Cons. Stat. Ann. §§ 10225.101-10225.5102 (“OAPSA” or
“the Act”), which sets numerous requirements for employment practices in personal care
homes. Of particular relevance here, the amended Act made it illegal to hire or retain an
employee who had two or more misdemeanors for theft-related offenses (so-called “barrier
offenses”). 35 Pa. Cons. Stat. Ann. §§ 10225.503(a)(2), 10225.505. In June 2004,
management at Glenshire Woods learned that Poth had four prior misdemeanor
convictions, dated October 18, 1990, for receiving stolen property. Management
determined that the misdemeanor convictions were “barrier offenses” under OAPSA, and
that Glenshire Woods was prohibited from continuing to employ Poth. Poth also had
incurred several DUI-related convictions between 1998 and 2004, while employed at
Glenshire Woods, but they were not considered “barrier offenses” under OAPSA.
Glenshire Woods fired Poth on July 2, 2004.

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II. Procedural History
Following her termination, Poth filed a grievance with her union, District 1199P
Service Employees International Union, AFL-CIO, CLC (“Union”). Glenshire Woods and
the Union were parties to a Collective Bargaining Agreement (“CBA”), effective
November 1, 2002 through October 31, 2005, see App. at 158-185, that governed the
terms and conditions of employment practices for Union employees at Glenshire Woods.
In her grievance, Poth claimed that Glenshire Woods had terminated her in violation of
Article 14 of the CBA, which stated that “no employee shall be dismissed . . . without just
cause.” App. at 173, 187. The CBA did not define “just cause,” and the Union and
Glenshire Woods could not agree on its meaning. The parties submitted their dispute to an
arbitrator, as required by Article 16.1 of the CBA. In addition, under Article 16.2, “[a]ll
determinations and awards of an arbitrator hereunder shall be final, conclusive and binding
upon all the parties hereto, their heirs, executors, administrators, assigns or successors in
interest.” App. at 175.
The issue before the arbitrator was two-fold: (1) “whether or not [Poth’s] criminal
history required [Glenshire Woods] to discharge [Poth], as a matter of law, pursuant to the
provisions of [OAPSA];” and (2) whether Glenshire Woods had “just cause” to terminate
Poth based upon Poth’s falsification of her employment application, a Class III violation
of the employee handbook. App. at 74-75. The arbitrator determined that Poth’s
termination was not required by law because in Nixon v. Commonwealth, 839 A.2d 277
(Pa. 2003), the Pennsylvania Supreme Court had declared the criminal records chapter of

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1 Glenshire Woods does not pursue this argument on appeal
and did not present it to the District Court; as such, we do not
consider it.
4
OAPSA unconstitutional as applied to individuals similarly situated to Poth. In addition,
the arbitrator recognized that the Pennsylvania Department of Aging (“DOA”) had
promulgated new rules addressing employment practices for persons with barrier offenses,
but noted that the rules did not proscribe employment of individuals who had a minimum
five-year aggregate work history in care dependent services. Thus, Poth’s employment
was not prohibited by the rules because she had not been convicted of a barrier offense
since October 1990, and had more than five years aggregate work history in care
dependent services since then. With respect to the second issue, the arbitrator decided that
Glenshire Woods did not meet its burden of proof, principally because there was no
evidence that an employee handbook containing the relevant rule was in place at the time
Poth was hired. 1
Having concluded that Poth’s termination was not required by law and was not
otherwise supported by just cause, the arbitrator ordered her reinstated to her position as a
medication aide, retroactive to July 2, 2004, including back pay, benefits, and seniority.
Glenshire Woods filed suit in federal court, seeking to modify or vacate the
arbitration award. All parties agreed to dispose of the case by means of cross-motions for
summary judgment. The District Court affirmed the arbitrator’s award, and granted the
Union’s motion for summary judgment. The Court relied on the Supreme Court’s decision

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in Eastern Associated Coal Corp. v. United Mine Workers, District 17, 531 U.S. 57 (2000)
(emphasizing the extremely narrow scope of judicial review of an arbitrator’s decision
when entered pursuant to a collective bargaining agreement), in determining that the
arbitrator’s decision was not against public policy, as ascertained by reference to “positive
law.” In a thorough decision, the District Court considered each potential source of
positive law cited by the parties, and ultimately concluded that Poth’s reinstatement was
not contrary to the public policy espoused in the qualifying sources of positive law.
Glenshire Woods appeals.
III. Discussion
A. Standard of Review
We review the District Court’s order granting summary judgment de novo. Blair v.
Scott Specialty Gases, 283 F.3d 595, 602-03 (3d Cir. 2002). The parties agree that there
are no facts in dispute. We thus turn to examine whether we have any authority to vacate
the award of the arbitrator, as Glenshire Woods requests.
“‘Judicial review of a labor-arbitration pursuant to [a collective bargaining]
agreement is very limited.’” Nat’l Ass’n of Letter Carriers v. U. S. Postal Serv., 272 F.3d
182, 185 (3d Cir. 2001) (quoting Major League Baseball Players Ass’n v. Garvey, 532
U.S. 504, 509 (2001) (per curiam)). This deferential standard of review “derives from the
[Supreme] Court’s recognition that the parties to the collective bargaining agreement
‘bargained for’ a procedure in which an arbitrator would interpret the agreement.” Id.
(citing E. Associated Coal Corp., 531 U.S. at 62). Thus, when analyzing an arbitration

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2 Even if it was, “as long as [an honest] arbitrator is even
arguably construing or applying the contract and acting within the
scope of his authority, the fact that a court is convinced he
committed serious error does not suffice to overturn his decision.”
E. Associated Coal Corp., 531 U.S. at 61 (internal quotations
omitted).
6
award reinstating an employee, a reviewing court should assume that the collective
bargaining agreement itself calls for the employee’s reinstatement. E. Associated Coal
Corp., 531 U.S. at 61. “That is because both employer and union have granted to the
arbitrator the authority to interpret the meaning of their contract’s language, including
such words as ‘just cause.’” Id. (citing Steelworkers v. Enterprise Wheel & Car Corp.,
363 U.S. 593, 599 (1960)). Thus, the arbitrator’s interpretation is, in effect, what the
parties contracted for in their agreement. See id. When the parties have “bargained for”
an “arbitrator’s construction” of an agreement or a particular term in an agreement, courts
should set aside the arbitrator’s interpretation “only in rare instances.” Id. at 62.
Glenshire Woods does not argue that the arbitrator acted outside the scope of the
authority delegated to him under the CBA.2 Rather, Glenshire Woods argues that the
arbitrator’s award is contrary to public policy. A “reviewing court may vacate [an] award
if the arbitrator’s interpretation of the collective bargaining agreement was ‘contrary to
public policy.’” Nat’l Ass’n. of Letter Carriers, 272 F.3d at 185 (citing E. Associated Coal
Corp., 531 U.S. at 62). Therefore, “we must treat the arbitrator’s award as if it represented
an agreement between [Glenshire Woods] and the union as to the proper meaning of the
contract’s words ‘just cause.’” E. Associated Coal Corp., 531 U.S. at 62. In other words,

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the arbitrator’s award is, in effect, not distinguishable from the CBA for purposes of our
analysis. See id. The question then becomes whether Poth’s reinstatement would make
the CBA itself unenforceable on the grounds that it violates public policy. See id.
Importantly, the question is not “whether [Poth’s] [criminal history] itself violates public
policy, but whether the agreement to reinstate [her] does so.” Id. at 62-63.
“[P]ublic policy must be explicit, well defined, and dominant.” Id. at 62 (internal
quotations omitted). Public policy must be ascertained by reference to positive law, that
is, from laws and legal precedents, not from “general considerations of supposed public
interests.” Id. at 63. The “public policy exception” to the rule that courts should generally
uphold labor arbitration awards is “narrow.” See id. In sum, the Supreme Court has set
forth the question we must ask: “does a contractual agreement to reinstate [Poth] . . . run
contrary to an explicit, well-defined, and dominant public policy, as ascertained by
reference to positive law and not from general considerations of supposed public
interests?” Id.
B. Whether the Arbitrator’s Decision is Contrary to Public Policy
The parties have identified two principal sources of positive law relevant to the
determination whether the arbitrator’s award violates public policy: (1) OAPSA and (2)
the laws governing personal care homes under the Public Welfare Code, 62 Pa. Cons. Stat.
Ann. §§ 1001-1087. We analyze each in turn.
1. OAPSA
The criminal history reporting chapter of OAPSA must be read in conjunction with

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the Pennsylvania Supreme Court’s decision in Nixon v. Commonwealth, 839 A.2d 277
(Pa. 2003), which held that some of OAPSA’s requirements were unconstitutional. The
parties dispute whether a document issued by the DOA following the Nixon decision
constitutes positive law, and hence, whether it has any bearing on our public policy
analysis.
In 1987, the Pennsylvania General Assembly enacted OAPSA for the purpose of
protecting “older adults who lack the capacity to protect themselves” and are at risk of
“abuse, neglect, exploitation or abandonment,” that is, for purposes of this appeal,
residents of personal care homes. 35 Pa. Cons. Stat. Ann. § 10225.102. The General
Assembly granted the DOA, in consultation with the Department of Health and
Department of Public Welfare (“DPW”), the power to promulgate regulations necessary to
carry out the purposes of OAPSA. Id. § 10225.504.
Effective July 1, 1998, OAPSA delineated various requirements for employment
practices in personal care homes, including a chapter regulating the treatment of
employees and applicants for employment with a criminal history. Specifically, OAPSA
provided that a personal care home may not hire or retain an employee who has been
convicted of certain prohibited offenses. Id. § 10225.503. Relevant for our purposes, the
Act prohibited hiring or retaining an employee with two or more misdemeanor convictions
for theft-related offenses. Id. § 10225.503(a)(2). The amended Act also provided that
“[a]n individual who, on the effective date of this chapter [July 1, 1998], has continuously
for a period of one year been an employee of the same facility shall be exempt from” the

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criminal history reporting requirements set forth in section 10225.502. Id. § 10225.508(1).
Subsequently, in Nixon, 839 A.2d at 290, the Pennsylvania Supreme Court held
that the criminal history chapter of OAPSA was unconstitutional. In Nixon, the plaintiffs
were individuals who had convictions for barrier offenses that were 12-29 years old. Id. at
283 n.9. Subsequent to those convictions, each plaintiff had worked in a personal care
home for times ranging from “several” to over twenty years, without incurring another
barrier offense. Id. The plaintiffs’ supervisors submitted declarations, stating that they
would rehire the plaintiffs if permitted by OAPSA. Id. at 283-84 n.10.
In a suit filed by plaintiffs under Article I, section 1 of the Pennsylvania
Constitution, which guarantees the right to pursue a lawful occupation, the Pennsylvania
Supreme Court held that there was no rational basis for distinguishing caretakers with
barrier offenses who had worked in a single personal care home for one year immediately
prior to the effective date of the Act from those who had successfully worked in the
industry for more than a year but had not held one continuous job in a single facility since
July 1, 1997. Id. at 289. The Court reasoned that the “only conceivable explanation” for
the distinction was that those who had worked at one facility for at least a year presented
less of a risk because they had proven that they were able to work with patients and had
established a level of trust with management. Id. Thus, the Court concluded, there was no
reason to distinguish between employees who had worked for one year immediately prior
to the effective date of the Act and those who had previously successfully worked in
covered facilities for many years because both categories of employees demonstrated that

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3 Anker addressed how to analyze a fragmented United
States Supreme Court decision, and thus involved a nine Justice
panel. Although this case involves a Pennsylvania Supreme Court
decision, involving a seven Justice panel, the relevant principle is
analogous.
10
they were capable of rehabilitating themselves. Id. In sum, the Court held that “the
criminal records chapter [of OAPSA], particularly with regard to its application to the
Employees, does not bear a real and substantial relationship to the Commonwealth’s
interest in protecting the elderly, disabled, and infirm from victimization, and therefore
unconstitutionally infringes on the Employees’ right to pursue an occupation.” Id. at 290.
Glenshire Woods argues that the District Court applied the wrong legal standard in
finding that “Ms. Poth is more like the Nixon plaintiffs than not.” App. at 22. Glenshire
Woods, citing Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161 (3d Cir.
1999), argues that the District Court should have instead determined if Poth is
“substantially identical” to the Nixon plaintiffs because, under Glenshire Woods’ view, the
Nixon decision was splintered, and thus is binding only in its specific result. Id. at 170.
We disagree. Nixon was not a “splintered” decision, and therefore, the
“substantially identical” test does not apply. In Anker,3 we explained that “‘[w]hen a
fragmented Court decides a case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgment on the narrowest grounds.’” Anker, 177
F.3d at 169 (quoting Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotations

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4 Because there is no need to apply the “substantially
identical” test, we make no determination whether the District
Court accurately applied that test. It is sufficient for our purposes
that the District Court applied the holding of Nixon when analyzing
OAPSA.
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omitted)). When applying the principle of a splintered decision to another case, the
splintered decision is binding only if the factual scenario is “substantially identical” to the
subsequent case. Id. at 170.
Nixon was not a splintered decision because there is a common denominator of the
Court’s reasoning that “‘constitute[s] the controlling holding.’” Id. (citation omitted). In
Nixon, three justices joined the majority. A fourth, Justice Castille, wrote separately only
to add that, in addition to the equal protection analysis relied on by the majority, he also
would have found that the lifetime ban on employment violated the Due Process Clause.
Nixon, 839 A.2d at 291. The common denominator of the Court’s reasoning is, therefore,
the majority opinion in its entirety, as it was joined by four justices. See id. Two other
justices concurred based upon different reasoning altogether, and one justice dissented.
Because there is a controlling majority in Nixon, we need not apply the “substantially
identical” test as required when a decision is “splintered.”4
Although the criminal records chapter of OAPSA, as enacted, would have
prohibited Poth’s continued employment, the Act as modified by Nixon does not prohibit
her reinstatement. Poth had been convicted of barrier offenses, that is, two theft-related
misdemeanors. She did not work at Glenshire Woods continuously for the year prior to

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5 We note that Glenshire Woods does not now argue and
did not argue in arbitration that the DUI offenses and disciplinary
infractions created “just cause” to terminate Poth. Rather, it argues
that these infractions change the Nixon analysis regarding whether
Poth’s continued employment was prohibited by law, and hence
whether her reinstatement was contrary to public policy.
6 Poth also received numerous commendations for her work
at Glenshire Woods. See App. at 362-369.
12
July 1, 1998. Prior to her termination in 2004, however, Poth worked at Glenshire Woods
for six years without incurring another barrier offense.
Glenshire Woods argues that Nixon does not apply to Poth because she was
convicted of several DUI offenses between 1998 and 2004 and received numerous
disciplinary infractions during her employment at Glenshire Woods.5 Poth did incur
several disciplinary infractions and was convicted of three misdemeanor DUI charges, but
none of those incidents are disqualifying barrier offenses under OAPSA.6 Nixon does not
suggest that incurring a non-barrier offense misdemeanor charge would change the
analysis.
Because the mandatory termination provision of OAPSA is unconstitutional as
applied to Poth under the holding in Nixon, there is no provision of OAPSA that prohibits
Poth’s continued employment at Glenshire Woods. It was not contrary to public policy, as
governed by the positive law of OAPSA and Nixon, for the arbitrator to reinstate Poth.
We will affirm the District Court on this point.
Glenshire Woods also argues that a document issued by the DOA on the subject of

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criminal background checks following the Nixon decision is positive law that we should
examine. See Commonwealth of Pennsylvania Department of Aging, Older Adults
Protective Services Act – Criminal Background Check Provisions, at
http://www.aging.state.pa.us/aging/CWP/view.asp?a=284&Q=228847 (follow “Notice -
Nixon Decision Appealed - How does this impact employment decisions?” hyperlink)
(Feb. 2004); see also App. at 359.
Positive law includes statutes, legal precedent, and agency regulations. See E.
Associated Coal Corp., 531 U.S. at 63. The public policy espoused in the positive law
must be explicit, well-defined, and dominant. Id. It does not include general
considerations of supposed public interests. Id.
Unlike a regulation, a “statement of policy” is a document “promulgated by an
agency which sets forth substantive or procedural personal or property rights, privileges,
immunities, duties, liabilities or obligations of the public . . . and includes . . . any
document interpreting or implementing any [statute] . . . enforced or administered by such
agency.” 45 Pa. Cons. Stat. Ann. § 1102(13). It is forward-looking in nature, expressing
the agency’s future intentions. Borough of Pottstown v. Pa. Mun. Ret. Bd., 712 A.2d 741,
743 n.8 (Pa. 1998). Importantly, a statement of policy does not have the force of law. Id.
Therefore, because the DOA document is a statement of policy that does not have
the force of law, it is not within the umbrella of “positive law” that we should consider in
determining whether the arbitrator’s award was contrary to public policy. The District

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7 The District Court also determined that the document was
too ambiguous to constitute a proper source of public policy.
Because we have already determined that the document is not
positive law at all, we need not consider the District Court’s
alternative basis for rejecting the document.
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Court did not err in refusing to consider this document.7
2. Department of Public Welfare Regulations/Public Welfare Code
Glenshire Woods also argues that regulations of DPW issued under the Public
Welfare Code compel us to determine that the arbitrator’s decision to reinstate Poth is
contrary to public policy. The DPW is the agency charged with licensing personal care
homes. 62 Pa. Const. Stat. Ann. § 1007. If a facility does not comply with applicable
statutes, ordinances, and regulations, id., the DPW can revoke its license. Id. § 1026(b).
Operation without a license can render the facility operator criminally and/or civilly liable.
Id. §§ 1031, 1055-56.
One of the requirements to obtain or renew a license is compliance with DPW’s
regulations with respect to employment practices. Those regulations provide, in relevant
part, that “[h]iring, retention and utilization of staff persons shall be in accordance with the
Older Adult Protective Services Act . . . .” 55 Pa. Code § 2600.52. We agree with the
District Court’s determination that by incorporating OAPSA into the licensing regulations,
the DPW also necessarily incorporates the Nixon decision’s interpretation of OAPSA.
The regulations, therefore, add nothing new to what has already been discussed. See 1 Pa.
Cons. Stat. Ann. § 1922(4). Thus, we read the DPW regulations as compelling compliance

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with OAPSA, except to the extent restricted by Nixon.
IV. Conclusion
For the above stated reasons, we conclude that the labor arbitrator’s decision to
reinstate Poth, entered pursuant to a contractual agreement between the Union and
Glenshire Woods, does not “run contrary to an explicit, well-defined, and dominant public
policy, as ascertained by reference to positive law and not from general considerations of
supposed public interests.” See E. Associated Coal Corp., 531 U.S. at 63. We therefore
affirm the judgment of the District Court entered on October 17, 2006 that, in turn, upheld
the arbitrator’s award dated December 1, 2005.

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