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******************************************************STATE OF CONNECTICUT v. CONNECTICUT

EMPLOYEES UNION INDEPENDENT ET AL.

(SC 19590)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.* Argued March 31—officially released August 30, 2016 Barbara J. Collins, for the appellant (named defendant). Gregory T. D’Auria, solicitor general, with whom

were ThomasP. CliffordIII , assistant attorney general, and, on the brief, George C. Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (plaintiff).Opinion ROGERS, C. J. This case presents the question of whether the public policy of Connecticut demands no less than termination ofemployment as the only appropriate disciplinary response when a state employee is caught smoking marijuana during his working hours. The defendant,1 Connecticut Employees Union Independent, appeals2 from the judgment of the trial court rendered following the court’s denial ofthe defendant’s motion to confirm an arbitration award that reinstated Gregory Linhoff, a union member (grievant), to his employment at the University of Connecticut Health Center (health center). The court denied the defendant’smotionto confirmandgrantedamotiontovacate the awardfiledbythe plaintiff, the state ofConnecticut, after concluding that the award, which imposed anumber of sanctions and conditions short of termination, violated public policy. We disagree that the arbitrator’s award, which imposed an unpaid suspension, last chance status and random drug testing, clearlyviolated

an explicit, well-defined and dominant public policy and, therefore, reverse the judgment of the trial court.
The following facts and procedural history are relevant to this appeal. At the time of the incident in question, the grievant had been employed by the state for approximately fifteen years and had not been subject to anyprevious discipline. Hisperformance evaluations hadrangedfrom‘‘satisfactory’’to ‘‘excellent.’’ OnMarch 7, 2012, whileworking, ashehadfortheprevious eleven years, the 4 p.m. to midnight shift as a ‘‘skilled maintainer’’3 at the health center, he was caught smoking marijuana. Specifically, at about 5:50 p.m., ahealth centerpolice officer observed the grievant and a coworker sitting in

astatevanparkedinasecludedareaofthehealthcenter campus, afterthe officer was apprised ofa confidential informant’s report that the grievant and his coworker

were suspected of using marijuana at work. As the officer approached the van, he observed the grievant sitting in the passenger seat with the door open, smoking from a glass pipe. When the officer asked the grievant what he was doing, he initially responded that he

was ‘‘just fucking off,’’ but then acknowledged that he

was smoking marijuana. He also surrendered two bags of marijuana that he had in his possession, which together weighed about three quarters of one ounce. The grievant was arrested and provided a statement to police in which he identified the individual from whom he had purchased the marijuana. The criminal charges against the grievant subsequently were dismissed.
OnJune 22, 2012, as aresultoftheforegoingincident, the plaintiff terminated the grievant’s employment. In

a letter oftermination sent to the grievant, Karen Duffy Wallace, the plaintiff’s director of labor relations,explained that the grievant had violated the health center’s rules of conduct,4 alcohol abuse and drug-free workplace policy,5 and smoke-free workplace policy, and that the incident was considered to be serious. Wallace noted further the unsupervised nature of the grievant’s position and the fact that he had access to all areas of the health center, and she opined that the grievantnolongercouldbetrustedtoperformhisduties in an acceptable manner. The defendant contested the grievant’s termination and, on December 19, 2013, pursuant to a grievance procedureprovisionintheparties’ collectivebargaining agreement, anarbitrationhearingwasheldto determine the issues of whether: (1) the dismissal of the grievant

was for just cause; and (2) if not, what should be the remedy, consistent with the agreement. Wallace testified at the hearing, explaining that, when she decided to terminate the grievant’s employment, she took into account the nature of the violation and the fact that the grievant was smoking marijuana in a state vehicle

on state property, during the earlier part of his work shift. She explained further that a person in the grievant’s position had keys and access to most ofthe health center campus, including the day care center, research laboratories and the hospital. In Wallace’s view, a person such as the grievant could not be trusted to work independently on the evening shift.
The grievant testified in his defense. He explained, with some detail, how he had brought his marijuana to workinadvertently, andhow, whenheandhiscoworker

were presented with about ten minutes oftime ‘‘to kill’’ between working assignments, they decided to park in the secluded area where the police officer had discovered them. According to the grievant, when he realized that a glass pipe in his possession was ‘‘smelly,’’ he decided to smoke the residue in the pipe to eliminate the odor, and at that point was caught by the officer.
The grievant explained further that he recently had experiencedstressfullife events, namely, acancerscare and marital problems, leading to anxiety from which he sought reliefby smoking marijuana. He claimed that he had not smoked marijuana at work prior to the incident in question. The grievant testified that, following the incident, he went to an employee assistance program and sought treatment, which he regarded as successful. He testified further that, a few days prior totheincident, hehadhadhisfirsttherapyappointment at the Connecticut Anxiety and Depression Treatment Center. At that appointment, he was diagnosed with anxietyanddepression, andscheduledanotherappointment with a psychiatrist to address his conditions.
The arbitrator concluded that the plaintiff had met its burden ofestablishing that the grievant had engaged in misconduct, namely, possessing and smoking marijuana while at work. Moreover, in the arbitrator’s view,the grievant’s explanations as to why he had marijuana at work, and why he had decided to smoke from his pipe, were disingenuous. Contraryto the grievant’s testimony, the arbitrator opined, the grievant deliberately hadtakenthe marijuanatoworksothathe couldsmoke it when the occasion arose. The arbitrator concluded, however, that under the circumstances, termination of the grievant’s employment did not correspond with the notion ofjust cause. He cited the plaintiff’s rules, including its drug-free workplace policy, which permitted termination forviolations but did not mandate it, as well as the grievant’s previous, positive work record and the nature of the offense. The arbitrator also reasonedthatthe grievant’s pursuit of therapy for anxiety and depression, prior to the incident, evidenced some level of self-awareness, and that the reality of his dismissal, his ineligibility for unemployment benefits and the subsequent arbitration proceedings had impressed upon him the seriousness of his offense. In the arbitrator’s view, although the grievant’s job duties raised some safety and security issues, the grievant ‘‘did not engage in such a breach of trust or show such lack of character that his return to the workplace would create a danger to persons or property nor [did his actions] prohibit his return to workas asatisfactoryandproductive employee.’’ Citing the principle ofprogressive discipline as avital component ofjust cause that provides apath to rehabilitation under appropriate circumstances, the arbitrator concluded that termination was unwarranted. In short, the arbitrator rejected the plaintiff’s contention that complete termination ofthe grievant’s employment was the only appropriate penalty for his misconduct.
The arbitrator, nevertheless, imposed a significant penalty for the grievant’s substantial misconduct. The grievant was suspended for a period of six months, withoutpay, to run from the effective date ofhis earlier removal from the payroll.6 The arbitrator ordered additionally that the grievant, upon his return to work, be subject to random drug and alcohol testing for a one year period, at the plaintiff’s discretion, and that the grievant ‘‘should consider his return to work to be in

a ‘last chance’ context so that any future violation of the [plaintiff’s] policies that were applicable in [the arbitration] proceeding would warrant his immediate dismissal.’’ Thereafter, the plaintifffiled an application to vacate the arbitrator’s award, and the defendant filed a cross applicationto confirmthat award. See General Statutes §§ 52-417 and 52-418. In its application to vacate, the plaintiff contended, inter alia, that the arbitrator’s award violated public policy due to the serious nature of the grievant’s misconduct. The defendant disputed that contention. In an October 6, 2014 memorandum of decision, the trial court agreed that there was a well-defined public policy against the use ofmarijuana and, furthermore, that the arbitrator’s award violated that policy. Specifically, the court reasoned, the grievant purposefullyhad used marijuanaatwork, raising safety and security concerns, andto reinstate him underthose circumstances would send an improper message that personal stress somehow excusedhis misconduct.7The court granted the plaintiff’s application to vacate the award and denied the defendant’s application to confirm the award. This appeal followed.
We begin with the well established standard of review. ‘‘Because we favor arbitration as a means of settling private disputes, we undertake judicial review ofarbitration awards in amanner designed to minimize interference with an efficient and economical system of alternative dispute resolution.

. . . Furthermore, in applyingthis general rule ofdeference to an arbitrator’s award, [e]veryreasonablepresumption andintendment will be made in favor ofthe [arbitral] award and ofthe arbitrators’ acts and proceedings.’’ (Citation omitted; internal quotation marks omitted.) State v. New EnglandHealth CareEmployees Union, District 1199, AFL-CIO, 271 Conn. 127, 134, 855 A.2d 964 (2004).
We have recognized, however, that an arbitration award should be vacated when, inter alia, it violates clearpublicpolicy. Id. Whenachallengetoaconsensual arbitration award ‘‘raises a legitimate and colorable claim of violation of public policy, the question of whether the award violates public policy requires de

novojudicial review.’’8 (Internal quotation marks omitted.) Id., 135.
‘‘The public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy.

. . . A challenge that an award is in contravention ofpublic policy is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties

can expect a court to enforce such a contract between them.

. . . When a challenge to the arbitrator’s authorityismade onpublicpolicygrounds, however, the court is not concernedwiththe correctness ofthe arbitrator’s decisionbutwiththe lawfulness ofenforcingthe award.

. . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicitpublic policythat is well defined and dominant, and is to be ascertained by reference to the laws and legalprecedents andnotfromgeneral considerations of supposed public interests.’’ (Citations omitted; internal quotation marks omitted.) Id., 135–36.
‘‘The party challenging the award bears the burden of proving that illegality or conflict with public policyis clearly demonstrated.’’ (Internal quotation marks omitted.) Id., 136. ‘‘[G]iven the narrow scope of the public policy limitation on arbitral authority,’’ the trial court’s order vacating the arbitrator’s award should be upheld only if the plaintiff ‘‘demonstrates that the

. . . award clearly violate[d] an established public policy mandate.’’ (Internal quotation marks omitted.) Id. As

we repeatedly have emphasized, ‘‘implicit in the stringent and narrow confines of this exception to the rule ofdeferencetoarbitrators’ determinations, isthenotion that the exception must not be interpreted so broadly

asto swallowthe rule.’’9 (Internalquotationmarks omitted.) Id.
Consistent with the foregoing law, the sole issue before us is whether the arbitrator’s award reinstating the grievant to employment after a lengthy unpaid suspension, withvarious conditions, violatespublicpolicy. Thiscourtemploysatwo-prongedanalysisto determine whether an arbitration award should be vacated for violating public policy. ‘‘First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator’s award violated the public policy.’’ (Internal quotation marks omitted.) Id., 137. Looking to our statutory, regulatory and decisional law, we conclude that there exists an explicit, welldefined and dominant public policy against the possessionandrecreationaluse ofmarijuanaintheworkplace. It is true that, at least in certain circumstances, the criminal sanctions attendant to personal marijuana use recently have been lessened. Nevertheless, pursuant to Connecticut’s statutes and regulations, marijuana remains aschedule II controlled substance; see General Statutes § 21a-243 (c); Regs., Conn. State Agencies § 21a-243-8 (g); and, therefore, possession ofitbyunauthorized persons is disallowed. Possession ofrelatively small amounts ofmarijuanaby an unauthorized person subjects that person to a fine and confiscation of the marijuanaand, aftermorethantwo convictions, mandatory referral to a drug education program at the offender’s expense. See General Statutes § 21a-279a.10 Possession oflarger amounts ofmarijuana by an unauthorizedpersonexposesthatpersonto more significant fines, potential imprisonment and, for more than four

ounces or a second offense, a felony conviction. See General Statutes § 21a-279.11 Additionally, pursuant to the regulations of the Department of Administrative Services, the use ofillegal drugs while on duty is atype of misconduct for which a classified state employee may be reprimanded, suspended or dismissed. See Regs., Conn. State Agencies § 5-240-1a (c). Finally, the Appellate Court, in an appeal raising the same general issue as the present appeal, previously has held that Connecticut ‘‘has a well-defined public policy against the use of marijuana.’’ Enfield v. AFSCME, Council 4, Local 1029, 100 Conn. App. 470, 476, 918 A.2d 934, cert.denied, 282 Conn. 924, 925 A.2d 1105 (2007). In light of the foregoing authorities, we conclude that the statutory, regulatory and decisional law of Connecticut evinces an explicit and well-defined public policy against the recreational use of marijuana, particularly in the workplace.
We turn next to the question of whether, under the facts and circumstances of this case, the arbitrator’s award reinstating the grievant with conditions, after a period of suspension without pay, violated this public policy. ‘‘In other words, we must determine whether [the] public policy [that is implicated] required the grievant’s dismissal.

. . . In making this determination, we are mindful that the fact that an employee’s misconduct implicates public policy does not require the arbitrator to defer to the employer’s chosen form of discipline for such misconduct.’’ (Citation omitted; emphasisin original; internalquotationmarks omitted.) Stratfordv.AFSCME, Council 15, Local407 , 315 Conn. 49, 58, 105 A.3d 148 (2014). The party seeking to vacate
an award reinstating a terminated employee bears the burden of proving that ‘‘nothing less than the termination of [the grievant’s] employment’’ will suffice given the public policy at issue. (Internal quotation marks omitted.) Id., 59.
We recentlyissued acomprehensive opinion ‘‘to clarify the factors a reviewing court should consider when evaluating a claim that an arbitration award reinstating

a terminated employee violates public policy, and, by extension, the types of factual findings an arbitrator maymake in orderto assist areviewing courtin considering such a challenge.’’ Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 316 Conn. 618, 633, 114 A.3d 144 (2015). We held that, when determining whether termination ofemploymentis requiredtovindicatethepublicpolicy at issue, a court should focus on four principal factors ( Burr Road factors): ‘‘(1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible.’’12 Id., 634.
‘‘The first [BurrRoad] factor requires us to consider whether the relevant statutes, regulations, and other manifestations ofthe public policy at issue themselves recommend or require termination of employment as the sole acceptable remedy for aviolation thereof.

. . . Put differently, we ask whether the offense committed by the employee involves the sort of conduct the law deems to be inexpiable, or that would expose the employer to substantial liability if it were to reoccur.

. . . Whether sources ofpublic policy themselves mandate termination is a question oflaw subject to plenaryreview.’’ (Citations omitted.) Id., 634–35.
Theregulationsgoverningstateemploymentaremost pertinent here. As we previously have stated, the use of illegal drugs in the workplace explicitly is identified

as misconduct warranting discipline. See Regs., Conn. State Agencies § 5-240-1a (c) (10). Notably, however, the regulations do not require the dismissal of an employee for such misconduct. Although that sanction is available; see id., § 5-240-5a (a); the employer also is authorized to respond with a lesser sanction such as
a reprimand; see id., § 5-240-2a; or a suspension with reduced or no pay. See id., § 5-240-3a (a) and (b). The state’s drug-free workplace policy mirrors the regulations, providing that ‘‘[a]ny employee violating this policy [by unlawfully possessing or using a controlled substance in the workplace] will be subject to discipline, up to and including termination.’’13 (Emphasis added.) The policy also notes ‘‘Connecticut’s existing three-pronged strategy of education, treatment and enforcement to combat substance abuse,’’ and encourages employees with substance abuse problems to participate in an employee assistance program or a rehabilitation program. The state’s drug-free workplace policy explicitly references the federal Drug-Free Workplace Act of 1988 (federal act), 41 U.S.C. § 8101 et seq., which requires any state agencythat receives federal funding to certify that it will maintain a drug-free workplace. The current incarnation of that federal act provides that, when an employee ofafederal grantrecipientis convictedunder

a criminal drug statute for aviolation in the workplace, the grantee shall either: ‘‘(1) take appropriatepersonnel action against the employee, up to and including termination; or (2) require the employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for those purposes by a [f]ederal, [s]tate, orlocalhealth, lawenforcement, orotherappropriate agency.’’ 41 U.S.C. § 8104; see also 41 U.S.C. § 8103 (a) (1) (F). Citing an identical provision in the federal act applicable to federal contractors; see 41 U.S.C. § 8102 (a) (1) (F); the United States Court of Appeals for the Second Circuit has held that an arbitral award that reinstated an employee of a Connecticut skilled nursing facility after a seven month unpaid suspension, following his arrest in the workplace for possession of marijuana with intent to distribute, did not violate the public policy evidenced by, inter alia, the federal act. SaintMary Home, Inc. v. Service Employees International Union, District 1199, 116 F.3d 41, 46 (2d Cir. 1997). Thus, the federal act, like the state policy that draws from it, does not require termination for drug related misconduct in the workplace, but rather, allows for the options of a lesser sanction or a rehabilitative approach.14
In sum, the relevant sources of public policy do notsupport the conclusion that such policy is offended by discipline short of termination for a state employee’s

use ofmarijuanainthe workplace. Rather, theyprovide for an array ofresponses and explicitly support efforts at rehabilitation, thereby rejecting the notion that the perpetrator of the misconduct necessarily is incapable of atonement.
The secondBurrRoad factor ‘‘is whether the nature of the employment at issue implicates public safety or the public trust.

. . . Nationally, in the vast majority ofcases in which courts have vacated for public policy

reasons arbitration awards reinstating terminated employees, the grievant has been a public sector employee,15 primarily working in fields such as law enforcement, education, transportation, and health care, in other words, fields that cater to vulnerable populations or help ensure the public safety.

. . . This reflects the factthatthe threatto publicpolicyinvolved in reinstating aterminated employee is magnifiedwhen the offending employee provides an essential public service, and especially when he is employed by, represents, and, ultimately, is answerable to the people.’’ (Citations omitted; footnote added.) Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, supra, 316 Conn. 635– 36. The second Burr Road factor ‘‘hinges on general questions of law and policy and is, therefore, subject to plenary judicial review.’’ Id., 637.
Pertinent to this factor, the plaintiff had argued before the arbitrator that the grievant, due to his misconduct, no longer could be trusted to perform his unsupervised responsibilities as a skilled maintainer, such as changing heating, ventilation and air conditioning filters on a hospital roof, in an acceptable manner. It noted that the grievant had access to all areas of the health center campus, including a day care center, research laboratories and the hospital, and that he had

use ofastatevehicletotraversethe campusifitbecame necessary. In ordering reinstatement of the grievant, the arbitrator acknowledged that, given the grievant’s duties and his work locations, his marijuana use raised valid safety and security concerns, but nevertheless concluded ‘‘that [the] [g]rievant did not engage in such

a breach of trust or show such lack of character that his return to the workplace would create a danger to persons or property nor prohibit his return to work as
a satisfactory and productive employee.’’
We conclude that this factor weighs in favor of a determination that reinstatement of the grievant to his position as a skilled maintainer does not violate public policy. The grievant is a state employee, and thus answerable to the public for his paycheck, but there is

no indication that performance of his job duties substantiallyimplicatespublicsafety. Compare, e.g.,Exxon Shipping Co. v. Exxon Seamen’s Union, 993 F.2d 357,358, 367 (3d Cir. 1993) (affirming vacatur of award reinstating ship helmsmanwhotestedpositive formarijuana after his oil tanker ran aground in Mississippi River, emphasizing ‘‘the potentially disastrous effects of a major oil spill on the environment’’ and ‘‘[t]he magnitude of possible harm to the public’’); DeltaAirlines, Inc. v. Airline Pilots Assn. International, 861 F.2d 665, 674–75 (11th Cir. 1988) (affirming vacatur of award reinstating pilot who had flown commercial aircraft while intoxicated, thereby ‘‘endanger[ing] the lives of his passengers and crew’’), cert. denied, 493 U.S. 871, 110 S. Ct. 201, 107 L. Ed. 2d 154 (1989); Amalgamated Meat Cutters & Butcher Workmen ofNorth America AFL-CIO, Local Union 540 v. Great Western Food Co., 712 F.2d 122, 123–24 (5th Cir.) (vacating award reinstating driver who overturned eighteenwheel rig on highway after drinking on duty, observing that ‘‘[a] driver who imbibes the spirits endangers not only his own life, but the health and safety of all other drivers’’), rehearing denied, 717 F.2d 1399 (1983). Moreover, althoughhospitalpatientsareavulnerablepopulation, there is no finding by the arbitrator, or even any allegation by the plaintiff, that the grievant’s maintenance dutiesinvolvedcontactwithpatients orthemedical equipment used in their diagnoses or treatment. Similarly, the plaintiff has not argued, nor did the arbitrator find, that the grievant’s ability to access the campus daycare centerduringhiseveningworkshiftplaced him near children or that his ability to access research laboratories createdanydangertothepublic. Compare, e.g., State v. AFSCME, Council 4, Local 2663, AFLCIO, 59 Conn.App. 793, 804–806, 758A.2d387(affirming vacatur, on public policy grounds, ofaward reinstating driver ofchildren committed to custody ofDepartment of Children and Families after his convictions for possession of marijuana and cocaine with intent to sell), cert. denied, 255 Conn. 905, 762 A.2d 910 (2000); ClevelandBoard ofEducation v. InternationalBrotherhood ofFiremen & Oilers Local 701, 120 Ohio App. 3d 63, 75–76, 696 N.E.2d 658 (1997) (affirming vacatur, on public policy grounds, of award reinstating school bus mechanic who tested positive for cocaine use).16
The arbitrator explicitly found that the nature ofthe grievant’s misconduct was not ofsuch a nature that his return to work would endanger persons or property. When referencing the grievant’s job duties in connection with this finding, in recognition that the plaintiff’s safety concerns were valid, the arbitrator cited to an exhibitintherecord, namely, the DepartmentofAdministrative Services class specification for the grievant’s position. Generally speaking, that exhibit indicates that the grievant, as a skilled maintainer, potentially is required to operate, and make minor or emergency repairs to, equipment and vehicles associated with the performance ofgroundscare, buildingmaintenanceand skilled trades work. While it is possible to envision ahazardthatcouldbefallapersonperformingsuchduties ifhe were to make amiscalculation dueto the influence ofmarijuana, our research compels us to conclude that positions such as the grievant’s are not the kind of generalpublic oriented, ‘‘safetysensitive’’positionstypicallyassociatedwithapublicpolicymandatethatabsolutely bars reinstatement following an instance of drug

use. Cf. First National Supermarkets, Inc. v. Retail, Wholesale & ChainStoreFoodEmployees UnionLocal 338, 118 F.3d892, 893, 898 (2d Cir. 1997) (reinstatement of supermarket manager who reported to work under influence ofalcohol and prescription drugs did not violate public policy); Container Corp. of America v. UnitedPaperworkers International Union, Local 208, Docket No. CV-93-35773 (SVW), 1994 WL 803270, *1, 3 (C.D. Cal. March 31, 1994) (reinstatement of employee atmanufacturingfacilitywhousedmarijuanaanddrank alcohol at facility did not violate public policy); Big ThreeIndustries, Inc. v. ILWU, Local 142, Docket Nos. 86-0281 and 86-0289, 1987 WL 109087, *3–4 (D. Haw. February4, 1987) (reinstatementofemployees ofindustrialandmedicalgassupplierwhowere caughtsmoking marijuanaand inhaling nitrous oxide on companyproperty did not violate public policy, even though ‘‘safety

concerns [were] implicated’’); Premium Building Products Co. v. United Steelworkers ofAmerica, AFLCIO-CIC, 616 F. Supp. 512, 513, 516 (N.D. Ohio 1985) (reinstatement ofworker at manufacturing facilitywho

wasdiscoveredsmokingmarijuanaintoolanddyeroom did not violate public policy), aff’d, 798 F.2d 1415 (6th Cir. 1986). Regarding public policy, ‘‘there is a[n] [obvious] difference between an employee endangering onlyhimself

or herself

. . . and

. . . an employee endangering members of the general public.’’ (Citation omitted.) Southwest Ohio Regional Transit Authority v. Amalgamated Transit Union, Local 627 , Docket No. C930423, 1994 WL 525543, *5 (Ohio App. September 28, 1994); see also Super Tire Engineering Co. v. Teamsters Local Union No. 676, 721 F.2d 121, 122 and 125 n.6 (3d Cir. 1983) (reinstatement ofspot repairer at tire company who consumed alcoholic beverages on job site did not violate public policy because, inter alia, ‘‘[t]here was no evidence that [he] pose[d] a threat to fellow workers or society’’), cert. denied, 469 U.S. 817, 105 S. Ct. 83, 83 L. Ed. 2d 31 (1984). In light of the foregoingauthorities, we concludethatthesecondBurr Road factor does not weigh in favor of a conclusion that the arbitrator’s award violates public policy.
The third Burr Road factor ‘‘is the relative ‘egregiousness’ of the grievant’s offense.

. . . This factor encompasses myriad considerations, including, but not limited to: (1) the severity of the harms imposed and risks created by the grievant’s conduct; (2) whether that conduct strikes atthe core orfalls onthe periphery ofthe relevant public policy; (3) the intent ofthe griev-antwithrespecttothe offending conductandthepublic policy at issue; (4) whether reinstating the grievant would send an unacceptable message to the public or to other employees regarding the conduct in question; (5) the potential impact of the grievant’s conduct on customers/clients and other nonparties to the employment contract; (6) whether the misconduct occurred during the performance of official duties; and (7) whetherthe award reinstating the employee is founded

onthearbitrator’sdeterminationthatmitigatingcircumstances, or otherpolicy considerations, counterbalance the public policy at issue.

. . . This factor presents a mixed question oflaw and fact. We take as our starting point the factual findings of the arbitrator, which are not subject to judicial review.

. . . We defer as well to the arbitrator’s ultimate determination whether termination was ajust or appropriate punishment for the conduct at issue.’’ (Citations omitted.) Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, supra, 316 Conn. 637– 38. ‘‘[F]or purposes ofthe public policy analysis, [however] our determination of whether the conduct in question was so egregious that any punishment short of termination would offend public policy is not restricted to those findings,’’ because they may be case specific. Id., 638. ‘‘Judicialreview, bycontrast, necessarilytranscendstheinterestsofthepartiestothe contract, and extends tothe protection ofotherstakeholders and the public at large, who may be adversely impacted by the decision to reinstate the employee,’’ and therefore requires a broader scope. Id., 639. ‘‘Accordingly, we review de novo the question whether the remedy fashioned by the arbitrator is sufficient to vindicate the public policies at issue.’’ Id.
The grievant’s misconduct was significant. He was caught smoking marijuana during his working hours,

near the beginning ofhis shift, and the arbitrator found that he had brought the marijuana to work purposely with the intention ofsmoking it there. Accordingly, the misconduct clearlyfalls withinthe publicpolicyagainst illicit drug use in the workplace. Fortunately, however, the grievant’s misconduct did not result in any harm to persons or property. Moreover, given the nature ofthe grievant’s employment, the misconduct mainly created risks to his own safety, and not to that of vulnerable health center clients or other third parties. The arbitrator found that the substantial consequences flowing from the incident had had a sobering impact on the grievant. The grievant’s colleagues, considering those consequences, should be dissuaded from repeating the grievant’s error. The arbitrator concluded that termination of the grievant’s employment was unwarranted, but nevertheless imposed a severe punishment on the grievant, relying, in part, on mitigating circumstances, such as his positive work record, and competing policy aims, such as progressive discipline and the promotionof rehabilitation. Weighingall oftheforegoingsubfactors, we conclude that the third Burr Road factor essentially is neutral. Needlesstosay, themisconductatissuewascompletely unacceptable, and we do not condone it. Nevertheless, itsegregiousnesswastempered, atleasttosomedegree, by the countervailing considerations we previously have identified as relevant. Notably, many of the decisions that we have cited herein have upheld the reinstatement of employees following drug or alcohol related misconduct, even though that misconduct was purposeful, occurred in the workplace and, in some instances, was substantially more egregious than that ofthe grievant. See, e.g., FirstNationalSupermarkets, Inc. v.Retail, Wholesale& ChainStoreFoodEmployees UnionLocal 338, supra, 118 F.3d 893–94 (supermarket manager reported to work under influence of alcohol and prescription drugs, could not perform his duties, behaved ‘‘in manner unbecoming a manager,’’ shouted profanities, procrastinated, had trouble opening safe, at one point ‘‘blacked out,’’ then drove car on sidewalk and displayed gun to coworker [internal quotation marks omitted]); Saint Mary Home, Inc. v. Service Employees International Union, District 1199, supra, 116 F.3d 42 (grievant possessed three quarters of one
ounce ofmarijuanaand drugparaphernaliawhile working at nursing home, discovered when he was arrested for physical altercation resulting in injury to fellow employee); Container Corp. of America v. United Paperworkers International Union, Local 208, supra, 1994 WL 803270, *1 (manufacturing facility employee used marijuana and drank alcohol on plant premises during working hours); Big Three Industries, Inc. v. ILWU, Local 142, supra, 1987WL 109087, *1 (employees of industrial and medical gas supplier smoked marijuana and inhaled nitrous oxide on company property); Super Tire Engineering Co. v. Teamsters Local Union No. 676, supra, 721 F.2d 122 (spot repairer at tire company consumed alcoholic beverages at nearby inn during work breaks); Premium Building Products Co. v. United Steelworkers ofAmerica, supra, 616 F. Supp. 513 (worker at manufacturing facility was observed smoking marijuana in tool and dye room and denied doing so even after testing of confiscated substance proved offense); Lansing Community College v. Lansing Community College Chapter of the Michigan Assn.forHigherEducation, 161 Mich.App. 321, 323–24, 409 N.W.2d 823 (1987) (community college professor held‘‘class’’ athiscondominiumwherehesmokedmarijuana with students), reaffirmed after remand, 171 Mich. App. 172, 429 N.W.2d 619 (1988), appeal denied, 432 Mich. 882 (1989).
The fourthBurrRoad factor ‘‘is whetherthe grievant is so ‘incorrigible’ as to require termination.

. . . Put differently, in light of the grievant’s full employment history, is there a substantial risk that, should a courtuphold the arbitration award ofreinstatement, this particular employee will reengage in the offending conduct?

. . . Here, relevant considerations include whether, on the one hand, the grievant has committed similar offenses in the past and has disregarded an employer’s prior warnings or clear policy statements; or, on the other hand, whether the grievant: (1) has generally performed his work in a competent and professional manner; (2) has demonstrated a willingness to change and an amenability to discipline; (3) has exhibited remorse and attempted to make restitution for past offenses; and (4) is likely to benefit from additional training and guidance.

. . . We also consider whetherthe penalty imposed by the arbitratoris severe enough to deter future infractions by the grievant or others.

. . . Because these considerations are largely fact based and case specific, a reviewing court must defer to an arbitrator’s assessment—whether express
or implied—that a particular employee is unlikely to reoffend if reinstated.

. . . Absent an express finding bythe arbitrator, whichwouldbe unreviewable, acourt will deemanemployee incorrigible onlywhenthe likelihood ofrecidivism is plain fromthe face ofthe record.’’ (Citations omitted.)BurrRoad Operating Co. II, LLCv. New England Health Care Employees Union, District 1199, supra, 316 Conn. 639–40.
As to this factor, in arriving at the award ordering reinstatement, the arbitrator observed that the grievant had been employed by the plaintiff for fifteen years, with no prior disciplinary incidents, and had received favorable performance evaluations. The arbitrator also considered that the grievant had sought therapy for anxietyanddepressionpriortothe incidentinquestion, which indicated some propensity for self-awareness. Additionally, the arbitrator reasoned, ‘‘the [employee assistance program] counseling, the loss of hisjob, his disqualification for unemployment benefits, and the reality of this termination proceeding have impressed upon [the] [g]rievant that, notwithstanding what the status ofmarijuana use might be in somejurisdictions, thatin Connecticuttheuse andpossession ofmarijuana at the work site falls within the range of terminable offenses.’’ In short, the arbitrator concluded that the grievant took his offense seriously, and that he was amenable to rehabilitation.
The arbitratoragainacknowledgedthatthe grievant’s misconductwas substantial andwarranted asignificant penalty, namely, an unpaid suspension of six months duration. The arbitrator ordered further that upon the grievant’s return to work, he would be subject to random drug and alcohol testing for one year, and that he should consider himself to be operating in a ‘‘last chance’’ context such that any future violation of the applicable policies would result in his immediate dismissal.After consideration of the foregoing findings and all of the various components of the arbitrator’s award,

we conclude that the fourth Burr Road factor weighs against a conclusion that reinstatement of the grievant violatespublicpolicy. Bythe arbitrator’s estimation, the grievant’s personal qualities and overall record indicate that he is a good candidate for a second chance. Moreover, the discipline the arbitrator imposed was appropriately severe, and sends a message to others who might consider committing similar misconduct that painful consequences will result. The award provides

a disincentive forthe grievantto reoffend, and it makes clear that, should he be foolish enough to do so, he will be seekingnew employment. SeeStratfordv.AFSCME, Council 15, Local 407 , supra, 315 Conn. 53, 59 (reinstatement after nine month suspension without pay, with condition of future medical examinations, was ‘‘severe’’ punishment); see also Southwest Ohio Regional Transit Authority v. Amalgamated Transit Union, Local 627

, 91 Ohio St. 3d 108, 109, 114, 742 N.E.2d 630 (2001) (upholding arbitration award that reinstated, after unpaid suspension, bus mechanic who had tested positive for marijuana, but imposed conditions including rehabilitation program, unannounced drug testing and last chance provision; terms of award ‘‘were reasonable in that they imposed punishment and provided safeguards to prevent recidivism’’). Given the serious discipline imposedbythe arbitrator’saward, we disagree with the plaintiff’s contention that the award communicates to other state employees that there are
no consequences for engaging in misconduct similar to the grievant’s.17 See Eastern Associated Coal Corp. v. UnitedMine Workers ofAmerica, District 17 , 531 U.S. 57, 60–61, 65, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000) (award reinstating truck driver who twice tested positive for marijuana, after unpaid suspension and with conditions ofparticipationinsubstance abuseprogram, continued random drug testing and last chance provision, did not contravene public policy and did ‘‘not condone [his] conductorignorethe risktopublic safety that [that conduct posed],’’ but rather, ‘‘punishe[d]’’ him).
In closing, we emphasize that public policy based, judicial second-guessing of arbitral awards reinstating employees is very uncommon and is reserved for extraordinary circumstances, even when drug or alcoholrelatedviolationsareatissue. Ourgeneraldeference to an experiencedarbitrator’s determinations regarding just cause and the appropriate remedy is vital to preserve the effectiveness of an important and efficient forum for the resolution of employment disputes. If

an employer wishes to preserve the right to discharge employees guilty of misconduct such as that at issue in this case, thereby removing the matter from an arbitrator’s purview, it remains free to negotiate for the inclusion of an appropriate provision in the collectivebargaining agreement that would achieve that result.
The judgment is reversed and the case is remanded to the trial court with direction to grantthe defendant’s motion to confirm the arbitration award reinstating the grievant’s employment and to deny the plaintiff’s motion to vacate that arbitration award.
In this opinion PALMER, ZARELLA, EVELEIGH, McDONALD and ROBINSON, Js., concurred.

* This appeal was originally scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosaand Robinson. AlthoughJustice Eveleighwas notpresent at oral argument, he readthe briefs and appendices, and listened to a recording of the oral argument prior to participating in this decision.

1 Gregory Linhoff, the grievant in the underlying proceedings, also was named as a defendant in the trial court. For purposes of convenience, we refer herein to Connecticut Employees Union Independent as the defendant and to Linhoff as the grievant.

2 The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

3 The state Department of Administrative Services class specification for

a skilled maintainer, which was part of the record before the arbitrator, indicates generally that a person employed in that position may perform tasks in the areas of building and equipment maintenance, grounds care,
or trades work. The grievant’s specific job duties are not clear from the record, and the arbitrator made no findings in that regard.

4 Thehealthcenter’srulesofconductprohibitinrelevantpart‘‘[u]nlawfully

. . . possessing, using or being under the influence of

. . . drugs or controlled substances when on the job or subject to duty

. . . .’’

5 The health center’s alcohol abuse and drug-free workplace policy provides in relevant part that ‘‘the unlawful possession, use or distribution of illicit drugs and/or alcohol will not be tolerated.’’

6 Because more than six months alreadyhadpassed, the arbitratorfurther ordered the grievant to be returned to work immediately and made whole for all back pay accruing after the conclusion ofthe suspension period, less any income earned or unemployment compensation received, and subject to the usual and customary payroll deductions.

7 The trial court rejected additional challenges that the plaintiffhad raised to the arbitrator’s award.

8 We emphasize, however, thatourdenovoreviewislimitedtothequestion of whether the arbitrator’s decision to suspend the grievant as opposed to terminating his employmentis itselfcontraryto an establishedpublicpolicy. In a case involving an unrestricted submission, when we conduct de novo review in response to a claim of a public policy violation, we do not review either the arbitrator’s construction ofthe agreement, to determine whether that construction is correct, orthe arbitrator’s factual findings, to determine whether those findings have sufficient evidentiary support. See HH East Parcel, LLC v. Handy & Harman, Inc., 287 Conn. 189, 199, 947 A.2d 916 (2008) (‘‘[w]e

. . . do not substitute our own reading of the contract terms forthat ofthe arbitrator, butintervene onlyto the extentthat those terms, as interpreted, violate a clearly established public policy [emphasis in original; internal quotation marks omitted]); id., 200 (‘‘a reviewing court is bound by the arbitrator’s factual findings in reviewing a claim that an award rendered in a consensual arbitration violates this state’s public policy’’).

9 The public policy exception to the general rule of extreme deference to arbitralawards isintendedtobe an ‘‘exceedinglynarrow’’ one. Schoonmaker

v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 438, 747 A.2d 1017 (2000). By advocating for changes to our recent, well considered arbitration jurisprudence that would render the exception more broadly applicable, the concurringjustice failsto fullyappreciatethatitsverylimited scope is entirely purposeful, and for good reason, namely, to preserve the efficacyofanefficientandeconomicalprivate disputeresolutionmechanism for which the parties freely have bargained. In short, we do not share the concurrence’s viewthat the slim chances ofreversal underthe public policy exception are evidence of an improper, unintended consequence of our existing standards of review.

10 General Statutes § 21a-279a provides in relevant part: ‘‘(a) Any personwho possesses or has under his control less than one-halfounce ofa cannabis-type substance

. . . shall (1) for a first offense, be fined one hundred fifty dollars, and (2) for a subsequent offense, be fined not less than two hundred dollars or more than five hundred dollars. ‘‘(b) The law enforcement officer issuing a complaint for a violation of subsection (a) of this section shall seize the cannabis-type substance and

cause such substanceto be destroyedas contrabandin accordance withlaw. ‘‘(c) Any person who, at separate times, has twice entered a plea of nolo contendere to, or been found guilty after trial of, a violation of subsection (a) of this section shall, upon a subsequent plea of nolo contendere to, or findingofguiltyof, aviolationofsaidsubsection, bereferredforparticipation in a drug education program at such person’s own expense.’’

11 General Statutes § 21a-279 provides in relevant part: ‘‘(b) Any person who possesses or has under his control

. . . four ounces or more of a cannabis-type substance

. . . for a first offense, shall be guilty of a class D felony, and for a subsequent offense shall be guilty of a class C felony. ‘‘(c) Any person

. . . who possesses or has under his control one-half

ounce or more but less than four ounces of a cannabis-type substance

. . . (1) for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and (2) for a subsequent offense, shall be guilty of a class D felony.

. . .’’

12 Although the arbitrator’s decision in the present matterwas issuedprior to our decision inBurrRoad Operating Co. II, LLC, it touches upon many, but not all, of the factors and subfactors identified in that decision, as hereinafter discussed. We note that, to the extent the arbitrator failed to make factual findings pertinent to the analysis in that case, we are not free to supplement the record with factual findings of our own. See footnote 8 of this opinion. Consequently, our discussion of the Burr Road factors, in places, necessarily will be limited. The trial court, when deciding the parties’ motions to vacate or confirm, similarly did not have the benefit of our decision in Burr Road Operating Co. II, LLC, and, therefore, understandably did not apply the framework established by that decision. Notably, we intended in BurrRoad Operating Co. II, LLC, to bring clarity to an existing body ofjurisprudence that was confusing and, to some degree, internally inconsistent. See Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, supra, 316 Conn. 632–33.

13 Similarly, thehealth center’srules ofconductpermit ‘‘disciplinaryaction up to and including dismissal’’; (emphasis added); for an employee’s use
orpossession ofdrugs or controlled substances when on thejob. Its alcohol abuse and drug-free workplace policy also permits ‘‘disciplinary actionup to and including termination’’; (emphasis added); for an employee’s unlawful possession or use of illicit drugs.

14 In the present case, as we previously have mentioned, the charges against the grievant ultimately were dismissed. As to employees, like the grievant, who engage in workplace drug use that does not result in a conviction, the federal act does not prescribe any sanction at all. See generally 41 U.S.C. § 8103 (a) (1) (F).

15 Similarly, ‘‘[i]n Connecticut, in every case wherein this court has concludedthatan arbitration awardreinstating aterminated employee offended public policy, the grievant was a state or municipal employee.’’ BurrRoad Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, supra, 316 Conn. 637.

16 Notably, even in cases involving drug or alcohol use by employees in safety sensitive positions, or by employees who interact with vulnerable populations, courts do not invariably hold that awards reinstating their employmentviolate public policy. Rather, in many instances, after considering the applicable sources of public policy and all of the surrounding facts and circumstances, they conclude that lesser sanctions are an acceptable form of discipline. See, e.g., Doe v. Central Arkansas Transit, 50 Ark. App. 132, 135–36, 138–39, 900 S.W.2d 582 (1995) (reinstatement of public bus driver who tested positive for cocaine did not violate public policy); Dept. ofCentralManagement Services v. Ndoca, 399 Ill. App. 3d 308, 309, 312–13, 926 N.E.2d872 (2010) (reinstatement ofbridge mechanicwhotestedpositive for marijuana did not violate public policy); Amalgamated Transit Union, Division 1300 v. Mass TransitAdministration, 305 Md. 380, 390, 504 A.2d 1132 (1985) (reinstatement ofbus driverwho drove bus with odor ofalcohol

on breath did not violate public policy); Lansing Community College v. Lansing Community College Chapter of the Michigan Assn. for Higher Education, 161 Mich. App. 321, 323–24, 328, 409 N.W.2d823 (1987) (reinstate-ment ofcommunity college professor who smoked marijuana with students during class time did not violate public policy), reaffirmed after remand, 171 Mich. App. 172, 429 N.W.2d 619 (1988), appeal denied, 432 Mich. 882 (1989); Shenendehowa Central School DistrictBoard ofEducation v. Civil Service Employees Assn., Local 1000, AFSCME, AFL-CIO, Local 864, 20 N.Y.3d 1026, 1027–28, 984 N.E.2d923, 960 N.Y.S.2d 725 (2013) (reinstatement ofschool bus driver who tested positive for marijuana did notviolate public policy); Washington County Police Officers’Assn. v. Washington County, 335 Or. 198, 200–201, 63 P.3d 1167 (2003) (reinstatement of deputy sheriff who transported prisoners, following positive drug test and admitted daily drug usage, did not violate public policy).

17 Minimizing the significance ofa six month unpaid suspension and questioning whether it sends a strong enough message to other employees who might offend similarly; see concurring opinion p. (opining that those reading this decision will feel free to ‘‘kick back and light up ajoint during their down time at work’’); ignores the indisputable fact that millions of American families are living paycheck to paycheck, such that the loss of six months income would be nothing short of devastating. See, e.g., Board ofGovernors ofthe Federal Reserve System, Report on the Economic WellBeing of U.S. Households in 2015 (May, 2016) p. 22 (nearly one third of Americans could not cover their expenses during three month financial disruption, such as loss ofjob, byaccessing savings orborrowing; 46percent could not come up with $400 for unexpected emergency without borrowing

or selling something).