Federal District Court Opinions

Plaintiff and Counterclaim Defendant, v. DISTRICT 1199P,
Defendant and Counterclaim Plaintiff. Civil No. 1:05-2676.
United States District Court, M.D. Pennsylvania. October
17, 2006


SYLVIA RAMBO, District Judge

This action is to determine the enforceability of an
arbitration award reinstating an employee to her position in
a personal care home. The personal care home argues that
her reinstatement is contrary to public policy, and
requests that this court enter summary judgment vacating or
modifying the award. The union representing the employee
maintains that her reinstatement is not contrary to public
policy and therefore must be enforced by this court. Guided
by the Supreme Court’s decision in Eastern Associated Coal
Corp. v. United Mine Workers, Dist. 17, 531 U.S. 57 (2000),
this court agrees with the union and will enter summary
judgment in its favor. Page 2

I. Background

A. Facts

Tracey Poth was hired by Glenshire Woods Personal Care
Home (“Glenshire Woods”), operated by Plaintiff Extendicare
Health Services, Inc., on or about May 16, 1998.
(Arbitrator’s Award [“Award”] 11.) She was employed as a
Medication Aide at Glenshire Woods from that date until she
was fired on July 2, 2004. (Id.)

Ms. Poth was fired because the management of Glenshire
Woods discovered that her criminal history included four
misdemeanor convictions, dated October 18, 1990, for
receiving stolen property. (Id. at 25.) The facility
administrator determined that the misdemeanor convictions
constituted “barrier offenses” under the Older Adult
Protective Services Act, 35 Pa. Cons. Stat. Ann
§§ 10225.101-10225.5102 (“OAPSA”). The
administrator read the statute to mean that a personal care
home, such as Glenshire Woods, is prohibited from
continuing to employ an individual convicted of such
barrier offenses. (Award 25.) Additionally, Ms. Poth’s
record showed a number of additional convictions for
DUI-related offenses (Joint Appendix [“J.A.”] Ex. J), none
of which are barrier offenses under OAPSA. As a result, on
July 2, 2004, Ms. Poth was fired. (Award 27.)

Ms. Poth filed a grievance with her union, Defendant
District 1199P, Service Employees International Union
AFL-CIO, CLC (“Union”). The Union and Glenshire Woods are
bound by a collective bargaining agreement (“CBA”) that
governs the terms and conditions of facility employment
practices. (CBA Art. 1.) The CBA states that “no employee
shall be dismissed . . . without just cause.” (Id. Art.
14.1.) The term “just cause” is not defined in the
agreement. Page 3

The Union and Glenshire Woods disagreed over whether Ms.
Poth’s termination was based on “just cause.” They resorted
to arbitration, as required by the CBA. (Id. Art. 16.2.)
The arbitrator was charged to decide whether Glenshire
Woods had “just cause” to terminate Ms. Poth because her
criminal history made her dismissal mandatory under OAPSA.
(Award 29.) Other facts before the arbitrator were Ms.
Poth’s DUI-related convictions during her employment at
Glenshire Woods. (Award 13.) The Joint Appendix filed with
this court also shows a number of reports of her
disciplinary infractions while employed (J.A. Ex. N) and a
collection of employee awards and commendations that she
earned at Glenshire Woods (J.A. Ex. T).

The arbitrator found that Ms. Poth’s termination was
neither mandatory nor the result of “just cause.” (Id. at
30.) He determined that, in Nixon v. Commonwealth, 839 A.2d
277 (Pa. 2003), the Pennsylvania Supreme Court had
declared unconstitutional the criminal records chapter of
OAPSA, as it applied to “employees similarly situated to
[Ms. Poth].” (Award 29-30.) He found that the Pennsylvania
Department of Aging (“PDA”) promulgated “new rules” after
Nixon that do not prohibit someone with Ms. Poth’s criminal
history from being employed by a personal care home. (Id.
at 30.) Because Glenshire Woods was not required by law to
discharge Ms. Poth and her termination was not supported by
just cause (id.), the arbitrator ordered her reinstated to
her position as Medication Aide retroactively to July 2,
2004, with all lost salary, benefits, and seniority owed
her from that date (id. at 34-35). Page 4

B. Procedural History

The arbitral award was entered on December 1, 2005. On
December 28, 2005, Glenshire Woods filed the instant suit,
requesting that this court modify or vacate the award.
(Doc. 1.) The parties agreed that the matter be determined
upon motions for summary judgment. (Doc. 7.) The Union
filed its motion for summary judgment (Doc. 16) and
supporting brief (Doc. 17) on May 11, 2006. Glenshire Woods
filed its motion for summary judgment (Doc. 20) and
supporting brief (Doc. 21) on the same date. After both
sides filed briefs in opposition (Docs. 24, 25) and reply
briefs (Docs. 26, 27), the matter is ripe for disposition.

II. Legal Standard

A. Summary Judgment

The familiar standard of Federal Rule of Civil Procedure
56(c) provides that summary judgment shall be granted when
“there is no genuine issue as to any material fact and . .
. the moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c). The standard remains the same
when parties file cross-motions for summary judgment. Pa.
Fed’n of Sportsmans Clubs v. Norton, 413 F. Supp. 2d 358,
365 (M.D. Pa. 2004). The court must construe each motion
separately, however, viewing the evidence presented in the
light most favorable to the non-moving party. Id. When the
parties agree on the facts presented to the court, the
court may accept them as true and not in dispute for
purposes of summary judgment. Baer v. Chase, 392 F.2d 609,
615 (3d Cir. 2004).

Here, the parties do not dispute the facts of this case.
They submitted to the court a joint appendix of exhibits
that comprise the entire factual record. The Page 5
parties recognize that their arguments are solely arguments
of law and have agreed to dispose of the case on summary
judgment. (Doc. 7.) Thus, summary judgment by the court is

B. Judicial Review of an Arbitral Award

1. Generally

Judicial review of a labor arbitrator’s decision, when
entered pursuant to a collective bargaining agreement, is
exceedingly narrow. Nat’l Ass’n of Letter Carriers v. U.S.
Postal Serv., 272 F.3d 182, 185 (3d Cir. 2001). If the
arbitrator is unbiased, honest, and acts within the scope
of the authority granted him, a reviewing court may set
aside an arbitral award only in rare cases. E. Associated
Coal Corp., 531 U.S. at 62. The award must be closely
derived from the collective bargaining agreement itself,
not from the arbitrator’s “own notions of industrial
justice.” Id. at 62 (quoting United Paperworkers Int’l
Union v. Misco, Inc., 484 U.S. 29, 38 (1987)). If these
requirements are met, the reviewing court may not vacate an
award even if the court “is convinced [the arbitrator]
committed serious error.” Misco, Inc., 484 U.S. at 38-39
(allegations of “improvident, even silly, factfinding”
insufficient to overturn award); Nat’l Ass’n of Letter
Carriers, 272 F.3d at 185 (the test of a valid arbitration
award is “singularly undemanding”) (quotation omitted).

Limited judicial review of arbitration awards is proper
because such awards are part of the “continuous collective
bargaining process” between a union and an employer. United
Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 596
(1960). When a union and an employer contract to be bound
by an arbitrator’s decision in the event of a dispute about
the interpretation of the agreement, the arbitrator’s
findings of fact and conclusions of law must be treated as
if they Page 6 represent “an agreement between [the
employer] and the union as to the proper meaning of the
contract’s words.” E. Associated Coal Corp., 531 U.S. at
62; accord Misco Inc., 484 U.S. at 37-38; Enter. Wheel &
Car Corp., 363 U.S. at 599. A party “should not be deprived
of the arbitrator’s judgment, when it was his judgment and
all that it connotes that was bargained for.” Misco, Inc.,
484 U.S. at 37.

As with all contracts, however, a reviewing court may not
enforce an award that renders the collective bargaining
agreement unenforceable as contrary to public policy. E.
Associated Coal Corp., 531 U.S. at 62; W.R. Grace & Co. v.
Local Union 759, Int’l Union of the United Rubber, Cork,
Linoleum, & Plastic Workers, 461 U.S. 757, 766 (1983). The
reviewing court must determine whether the award itself
“run[s] 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.” E. Associated Coal Corp., 531 U.S. at 63;
accord W.R. Grace & Co., 461 U.S. at 766.

“Positive law” includes existing statutes, legal
precedent, Misco, Inc., 484 U.S. at 44, and agency
regulations, E. Associated Coal Corp., 531 U.S. at 63. It
does not encompass mere common sense, assumption, or
speculation.[fn1] Misco, Inc., 484 U.S. 29, 44 (1987). The
statutes, precedent, and regulations considered must state
with specificity the public policy to be enforced. See W.R.
Grace & Co., Page 7 461 U.S. at 766. The court, not the
arbitrator, is the final authority on the question of
public policy. Id. Accordingly, the court may examine the
arbitrator’s findings of fact and conclusions of law if
either are implicated in the public policy analysis. See
id.; E. Associated Coal Corp., 531 U.S. at 62.

2. Awards for Reinstatement

When examining an award of reinstatement, the court “must
assume that the collective-bargaining agreement itself calls
for [the employee’s] reinstatement.” Id. at 61. Thus, the
party seeking to vacate the award must show that the
reinstatement itself would contravene public policy, as
ascertained by reference to a specific provision of
positive law. Id. 62-63, 66; Mercy Hosp., Inc. v. Mass.
Nurses Ass’n, 429 F.3d 338, 343 (1st Cir. 2005); see Stead
Motors v. Automotive Machinists Lodge No. 1173, 886 F.2d
1200, 1216-17 (9th Cir. 1989). If reinstatement is not
prohibited by statute, precedent, or regulations, the award
must be enforced. E. Associated Coal Corp., 531 U.S. at 66.

A broadly-worded statute stating general goals for a
profession is not sufficient to bar an employee’s
reinstatement when awarded by an arbitrator. Boston Med.
Ctr., 260 F.3d at 23; see id. at 25 (statutes and case law
in favor of competent nursing care did not establish a
public policy prohibiting the reinstatement of a nurse who
committed one act of negligence in her ten-year employment
history); Pan Am. Airways Corp. v. Air Line Pilots Ass’n,
206 F. Supp. 2d 12, 23 (D.D.C. 2002) (statute requiring
“safe and adequate interstate air transportation” was too
general to prohibit the reinstatement of a pilot). Though
“reasonable people can differ” on the wisdom of an award
reinstating a particular employee, as long as it is not
prohibited by law, the award must stand. E. Associated Coal
Corp., 531 U.S. at 67; accord Page 8 Stead Motors, 886
F.2d at 1216-17 (enforcing reinstatement of a mechanic who
was regularly negligent in making repairs because
California law did not make his continued employment

Eastern Associated Coal Corp. is a helpful illustration of
the public policy assessment required when confronted with
a reinstatement award. In that case, Department of
Transportation regulations mandated drug testing for
drivers of commercial vehicles. E. Associated Coal Corp.,
531 U.S. at 63-64. The regulations required sanctions for
drivers who tested positive for illegal drug use one or
more times, but also allowed such drivers to complete
rehabilitation programs and achieve reinstatement. Id. at
64. A driver twice tested positive for marijuana
consumption. Id. at 59. After his employer sought to
discharge him, an arbitrator reinstated him to his position
with a number of rehabilitative conditions. Id. at 60-61.

The Supreme Court affirmed the district court’s decision
to enforce the arbitral award that required his
reinstatement. Id. at 67. Although the applicable law and
regulations counseled strongly against drug use by those
operating commercial vehicles, they did not explicitly
require that a driver who tests positive for drug use be
discharged. Id. at 65. Further, the award was consistent
with the agency’s rehabilitation paradigm that allowed
former drug users to return to productive work. Id. at 66.

3. The Instant Inquiry

Turning to the case at hand, the parties do not allege that
the arbitrator was biased, dishonest, or went beyond the
scope of his authority. Nothing in the record suggests that
conclusion. Glenshire Woods nonetheless argues that this
court should vacate the award because reinstating Ms. Poth
is contrary to public policy. Page 9 Thus, this court
must examine applicable “positive law” to determine whether
Ms. Poth’s reinstatement runs “contrary to an explicit,
well-defined, and dominant public policy,” such that it is
illegal for her to be employed by Glenshire Woods. See id.
at 63.