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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 Thomas P. Clifford III, 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 of employment 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 of the 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’s motion to confirm and granted a motion to vacate

the award filed by the plaintiff, the state of Connecticut,

after concluding that the award, which imposed a number 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, clearly violated

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 any previous discipline. His performance evaluations

had ranged from ‘‘satisfactory’’ to ‘‘excellent.’’ On March

7, 2012, while working, as he had forthe previous 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., a health center police

officer observed the grievant and a coworker sitting in

a state van parked in a secluded area ofthe health center

campus, after the officer was apprised of a 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.

On June 22, 2012, as a result of the foregoing incident,

the plaintiff terminated the grievant’s employment. In

a letter of termination 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

grievant no longer could be trusted to perform his duties

in an acceptable manner.

The defendant contested the grievant’s termination

and, on December 19, 2013, pursuant to a grievance

procedure provision in the parties’ collective bargaining

agreement, an arbitration hearing was held to 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 of the 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

work inadvertently, and how, when he and his coworker

were presented with about ten minutes of time ‘‘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

experienced stressful life events, namely, a cancer scare

and marital problems, leading to anxiety from which

he sought relief by 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

to the incident, he had had his first therapy appointment

at the Connecticut Anxiety and Depression Treatment

Center. At that appointment, he was diagnosed with

anxiety and depression, and scheduled another appointment with a psychiatrist to address his conditions.

The arbitrator concluded that the plaintiff had met

its burden of establishing 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. Contrary to the grievant’s testimony, the arbitrator opined, the grievant deliberately

had taken the marijuana to work so that he could smoke

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 of just cause.

He cited the plaintiff’s rules, including its drug-free

workplace policy, which permitted termination for violations but did not mandate it, as well as the grievant’s

previous, positive work record and the nature of the

offense. The arbitrator also reasoned that the 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

work as a satisfactory and productive employee.’’ Citing

the principle of progressive discipline as a vital component of just cause that provides a path to rehabilitation

under appropriate circumstances, the arbitrator concluded that termination was unwarranted. In short, the

arbitrator rejected the plaintiff’s contention that complete termination of the 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,

without pay, to run from the effective date of his 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 plaintiff filed an application to vacate

the arbitrator’s award, and the defendant filed a cross

application to confirm that 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 of marijuana and,

furthermore, that the arbitrator’s award violated that

policy. Specifically, the court reasoned, the grievant

purposefully had used marijuana at work, raising safety

and security concerns, and to reinstate him under those

circumstances would send an improper message that

personal stress somehow excused his misconduct.7 The

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

of arbitration awards in a manner designed to minimize

interference with an efficient and economical system

of alternative dispute resolution. . . . Furthermore, in

applying this general rule of deference to an arbitrator’s

award, [e]very reasonable presumption and intendment

will be made in favor of the [arbitral] award and of the

arbitrators’ acts and proceedings.’’ (Citation omitted;

internal quotation marks omitted.) State v. New

England Health Care Employees 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

clear public policy. Id. When a challenge to a consensual

arbitration award ‘‘raises a legitimate and colorable

claim of violation of public policy, the question of

whether the award violates public policy requires de

novo judicial 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 of public 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 authority is made on public policy grounds, however, the court

is not concerned with the correctness of the arbitrator’s

decision but with the lawfulness of enforcing the 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

explicit public policy that is well defined and dominant,

and is to be ascertained by reference to the laws and

legal precedents and not from general 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 policy
is 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

of deference to arbitrators’ determinations, is the notion

that the exception must not be interpreted so broadly

as to swallow the rule.’’9

(Internal quotation marks 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, with various conditions, violates public policy.

This court employs a two-pronged analysis to 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 possession and recreational use of marijuana in the workplace.

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 a schedule II controlled substance; see General

Statutes § 21a-243 (c); Regs., Conn. State Agencies

§ 21a-243-8 (g); and, therefore, possession of it by unauthorized persons is disallowed. Possession of relatively

small amounts of marijuana by an unauthorized person

subjects that person to a fine and confiscation of the

marijuana and, after more than two convictions, mandatory referral to a drug education program at the offender’s expense. See General Statutes § 21a-279a.10

Possession of larger amounts of marijuana by an unauthorized person exposes that person to 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 of illegal drugs while on duty is a type

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;

emphasis in original; internal quotation marks omitted.)

Stratford v. AFSCME, Council 15, Local 407, 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 recently issued a comprehensive 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

may make in order to assist a reviewing court in 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

of employment is required to vindicate the public policy

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 [Burr Road] factor requires us to consider

whether the relevant statutes, regulations, and other

manifestations of the public policy at issue themselves

recommend or require termination of employment as

the sole acceptable remedy for a violation 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 of public policy themselves mandate termination is a question of law subject to plenary
review.’’ (Citations omitted.) Id., 634–35.

The regulations governing state employment are most

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 agency that 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 of a federal grant recipient is convicted under

a criminal drug statute for a violation in the workplace,

the grantee shall either: ‘‘(1) take appropriate personnel

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, orlocal health, law enforcement, or other appropriate 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. Saint Mary 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 not
support the conclusion that such policy is offended by

discipline short of termination for a state employee’s

use of marijuana in the workplace. Rather, they provide

for an array of responses and explicitly support efforts

at rehabilitation, thereby rejecting the notion that the

perpetrator of the misconduct necessarily is incapable

of atonement.

The second Burr Road factor ‘‘is whether the nature

of the employment at issue implicates public safety or

the public trust. . . . Nationally, in the vast majority

of cases 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 fact that the threat to public policy involved

in reinstating a terminated employee is magnified when

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 of a state vehicle to traverse the campus if it became

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 substantially implicates public safety. 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 helmsman who tested positive for marijuana 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’’); Delta Airlines, 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 of North

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, although hospital patients are a vulnerable population, there is no finding by the arbitrator, or even any

allegation by the plaintiff, that the grievant’s maintenance duties involved contact with patients orthe medical 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 day care center during his evening work shift placed

him near children or that his ability to access research

laboratories created any danger to the public. Compare,

e.g., State v. AFSCME, Council 4, Local 2663, AFLCIO, 59Conn.App. 793, 804–806, 758A.2d 387 (affirming

vacatur, on public policy grounds, of award reinstating

driver of children committed to custody of Department

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); Cleveland Board of Education v. International Brotherhood

of Firemen & 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 of the

grievant’s misconduct was not of such 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

exhibit in the record, namely, the Department of Administrative 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 of grounds care, building maintenance and

skilled trades work. While it is possible to envision a
hazard that could befall a person performing such duties

if he were to make a miscalculation due to the influence

of marijuana, our research compels us to conclude that

positions such as the grievant’s are not the kind of

general public oriented, ‘‘safety sensitive’’ positions typically associated with a public policy mandate that absolutely bars reinstatement following an instance of drug

use. Cf. First National Supermarkets, Inc. v. Retail,

Wholesale & Chain Store Food Employees Union Local

338, 118 F.3d 892, 893, 898 (2d Cir. 1997) (reinstatement

of supermarket manager who reported to work under

influence of alcohol and prescription drugs did not violate public policy); Container Corp. of America v.

United Paperworkers International Union, Local 208,

Docket No. CV-93-35773 (SVW), 1994 WL 803270, *1, 3

(C.D. Cal. March 31, 1994) (reinstatement of employee

at manufacturing facility who used marijuana and drank

alcohol at facility did not violate public policy); Big

Three Industries, Inc. v. ILWU, Local 142, Docket Nos.

86-0281 and 86-0289, 1987 WL 109087, *3–4 (D. Haw.

February 4, 1987)(reinstatement of employees of industrial and medical gas supplier who were caught smoking

marijuana and inhaling nitrous oxide on company property did not violate public policy, even though ‘‘safety

concerns [were] implicated’’); Premium Building

Products Co. v. United Steelworkers of America, AFLCIO-CIC, 616 F. Supp. 512, 513, 516 (N.D. Ohio 1985)

(reinstatement of worker at manufacturing facility who

was discovered smoking marijuana in tool and dye room

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 only himself

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 of spot 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

foregoing authorities, we conclude that the second Burr

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 at the core or falls on the periphery

of the relevant public policy; (3) the intent of the griev-
ant with respect to the offending conduct and the public

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)

whether the award reinstating the employee is founded

on the arbitrator’s determination that mitigating circumstances, or other policy considerations, counterbalance

the public policy at issue. . . . This factor presents a

mixed question of law 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 a just 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 of the 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, by contrast, necessarily transcends the interests ofthe parties to the contract,

and extends to the protection of other stakeholders 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 of his shift, and the arbitrator found

that he had brought the marijuana to work purposely

with the intention of smoking it there. Accordingly, the

misconduct clearly falls within the public policy against

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 of the

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 promotion
of rehabilitation.

Weighing all of the foregoing subfactors, we conclude

that the third Burr Road factor essentially is neutral.

Needless to say,the misconduct at issue was completely

unacceptable, and we do not condone it. Nevertheless,

its egregiousness was tempered, atleastto some degree,

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

of the grievant. See, e.g., First National Supermarkets,

Inc. v. Retail, Wholesale & Chain Store Food Employees

Union Local 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 of marijuana and drug paraphernalia while 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, 1987 WL 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 of America, 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.for HigherEducation, 161 Mich.App. 321, 323–24,

409 N.W.2d 823 (1987) (community college professor

held ‘‘class’’ at his condominium where he smoked marijuana with students), reaffirmed after remand, 171

Mich. App. 172, 429 N.W.2d 619 (1988), appeal denied,

432 Mich. 882 (1989).

The fourth Burr Road factor ‘‘is whether the 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 court
uphold the arbitration award of reinstatement, 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

whether the penalty imposed by the arbitrator is 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

by the arbitrator, which would be unreviewable, a court

will deem an employee incorrigible only when the likelihood of recidivism is plain from the face of the record.’’

(Citations omitted.) Burr Road Operating Co.II, LLC v.

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

anxiety and depression priorto the incident in question,

which indicated some propensity for self-awareness.

Additionally, the arbitrator reasoned, ‘‘the [employee

assistance program] counseling, the loss of his job, his

disqualification for unemployment benefits, and the

reality of this termination proceeding have impressed

upon [the] [g]rievant that, notwithstanding what the

status of marijuana use might be in some jurisdictions,

that in Connecticut the use and possession of marijuana

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 arbitrator again acknowledged that the grievant’s

misconduct was substantial and warranted a significant

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

violates public policy. By the 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 for the grievant to reoffend, and it makes

clear that, should he be foolish enough to do so, he will

be seeking new employment. See Stratford v. 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 imposed by the arbitrator’s award, 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.

United Mine Workers of America, 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 of participation in substance abuse program,

continued random drug testing and last chance provision, did not contravene public policy and did ‘‘not

condone [his] conduct orignore the risk to public 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 alcoholrelated violations are at issue. Our general deference

to an experienced arbitrator’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 collective
bargaining agreement that would achieve that result.

The judgment is reversed and the case is remanded

to the trial court with direction to grant the 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, Espinosa and Robinson. Although Justice Eveleigh was

not present at oral argument, he read the 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 The health center’s rules of conduct prohibitin relevant part‘‘[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 already had passed, the arbitrator further

ordered the grievant to be returned to work immediately and made whole

for all back pay accruing after the conclusion of the 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 plaintiff had raised

to the arbitrator’s award.

8 We emphasize, however, that our de novo review is limited to the question

of whether the arbitrator’s decision to suspend the grievant as opposed to

terminating his employment is itself contrary to an established public policy.

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 of the agreement, to determine whether

that construction is correct, or the 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

for that of the arbitrator, but intervene only to the extent that 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

arbitral awards is intended to be an ‘‘exceedingly narrow’’ 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 concurring justice fails to fully appreciate that its very limited

scope is entirely purposeful, and for good reason, namely, to preserve the

efficacy of an efficient and economical private dispute resolution mechanism

for which the parties freely have bargained. In short, we do not share the

concurrence’s view that the slim chances of reversal under the 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 person
who possesses or has under his control less than one-half ounce of a 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 substance to be destroyed as contraband in accordance with law.

‘‘(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

finding of guilty of, a violation of said subsection, be referred for participation

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 matter was issued prior

to our decision in Burr Road 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 Burr Road Operating

Co. II, LLC, to bring clarity to an existing body of jurisprudence 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, the health center’s rules of conduct permit ‘‘disciplinary action

up to and including dismissal’’; (emphasis added); for an employee’s use

or possession of drugs or controlled substances when on the job. Its alcohol

abuse and drug-free workplace policy also permits ‘‘disciplinary action up 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 concluded that an arbitration award reinstating a terminated employee offended

public policy, the grievant was a state or municipal employee.’’ Burr Road

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

employment violate 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.

of Central Management Services v. Ndoca, 399 Ill. App. 3d 308, 309, 312–13,

926 N.E.2d 872 (2010)(reinstatement of bridge mechanic who tested positive

for marijuana did not violate public policy); Amalgamated Transit Union,

Division 1300 v. Mass Transit Administration, 305 Md. 380, 390, 504 A.2d

1132 (1985) (reinstatement of bus driver who drove bus with odor of alcohol

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.2d 823 (1987)(reinstate-
ment of community 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 District Board of Education v. Civil

Service Employees Assn., Local 1000, AFSCME, AFL-CIO, Local 864, 20

N.Y.3d 1026, 1027–28, 984 N.E.2d 923, 960 N.Y.S.2d 725 (2013) (reinstatement

of school bus driver who tested positive for marijuana did not violate 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 of a 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 a joint 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

of Governors of the 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 of job, by accessing savings or borrowing; 46 percent

could not come up with $400 for unexpected emergency without borrowing

or selling something).