******************************************************

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******************************************************
BURR ROAD OPERATING COMPANY II, LLC v.

NEW ENGLAND HEALTH CARE EMPLOYEES

UNION, DISTRICT 1199

(SC 19160)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.*

Argued October 20, 2014—officially released May 5, 2015

Michael E. Passero, for the appellant (defendant).

Andrea C. Kramer, for the appellee (plaintiff).
Opinion

ROBINSON, J. The sole issue in this certified appeal

is whether an arbitration award reducing the termination of an employee of a skilled nursing facility to a

one month unpaid suspension, as a consequence for a

two day delay by that employee in reporting her suspicion that her supervisor might have abused a resident,

violated a clearly discernible public policy against the

delayed reporting of suspected abuse of nursing home

residents. The defendant, New England Health Care

Employees Union, District 1199, appeals, upon our

grant of its petition for certification,1

from the judgment

of the Appellate Court reversing the judgment of the

trial court granting its application to confirm, and denying the application of the plaintiff, Burr Road Operating

Company II, LLC, to vacate an arbitration award that

reinstated the grievant, Leoni Spence, to her employment as a certified nursing assistant at a skilled nursing

facility operated by the plaintiff. Burr Road Operating

Co. II, LLC v. New England Health Care Employees

Union, District 1199, 142 Conn. App. 213, 234, 70 A.3d

42 (2013) (Burr Road). On appeal, the defendant claims

that the Appellate Court improperly determined that the

arbitration award reinstating the grievant’s employment

violated Connecticut’s clear public policy requiring the

prompt reporting of any incident of suspected abuse of

a nursing home resident. Having conducted a thorough

analysis of the four factors governing whether an arbitration award requiring the reinstatement of a terminated employee violates public policy, we conclude that

the award in the present case did not violate this public

policy. Accordingly, we reverse the judgment of the

Appellate Court.

The opinion of Appellate Court, as supplemented by

the record, reveals the following relevant facts and procedural history. The plaintiff operates a 120 bed skilled

nursing facility known as the Westport Health Care

Center (Westport). Id., 215. The grievant was employed

there as a certified nursing assistant from 2002 until

the termination of her employment in 2010, and is represented by the defendant. Id., 215–16.

Between 2005 and 2009, the grievant was the subject

of three disciplinary actions that have remained part

of her personnel file. Id., 216. In 2005, she received

a suspension and final warning after she improperly

restrained a resident by using a bed sheet to tie him

into his wheelchair. Id. In April, 2009, she received a

written warning for speaking to a resident in an inappropriately rude, loud, and scolding manner, and for being

insubordinate and disrespectful to her shift supervisor,

registered nurse Gay Muizulles. Id., 216–17. Finally, in

August, 2009, the grievant received a ‘‘ ‘[second] and

[f]inal’ ’’

2 written warning for addressing a resident disrespectfully and touching that resident without first

explaining the procedure involved. Id., 216.
The incident that led to the termination of the grievant’s employment transpired in March, 2010. Id. The

grievant worked the night shift, which runs from 11

p.m. to 7 a.m., from the evening of Saturday, March 20,

to the morning of Sunday, March 21. Id. She was

assigned to work on Westport’s ‘‘ ‘Riverside Unit’ ’’(Riverside) that night, along with Dezra Leonard, a charge

nurse. Id., 216–17. Muizulles was working on Westport’s

‘‘ ‘Woodside Unit’ ’’(Woodside)that night,together with

Laurel Johnson, another certified nursing assistant. Id.,

217. Sometime late in the shift, the grievant overheard

Johnson telling Leonard about an incident that had transpired that night at Woodside. Id. The grievant understood, from what she had overheard, that a Woodside

resident had been crying. Id. The grievant also heard

Johnson state something to the effect of, ‘‘ ‘[i]f the

supervisor wasn’t so rude, I would have picked up more

residents,’ ’’ or, ‘‘ ‘[t]hat’s what [Muizulles] gets, for not

calling Kim.’ ’’

3

Id. When the grievant approached Johnson and Leonard and asked them who had been crying,

Leonard did not respond, and Johnson indicated that

she would talk with the grievant later. Id. The grievant

and Johnson did not, however, have an opportunity to

talk further before their shifts ended. Id.

On the basis of the conversation she overheard, the

grievant concluded that Muizulles had been involved in

an incident in which a resident had been crying. Id.

Although the grievant could not be certain, she also

believed that the incident might have involved abuse.

Id. Before her shift ended, the grievant went to Woodside ‘‘ ‘to snoop’ ’’ around and investigate. Id. The residents were all asleep, however, and no one was

crying. Id.

According to the arbitration report, the grievant did

not report her suspicions at that time because, in her

words, ‘‘ ‘I didn’t know for sure that there had been

abuse . . . . I wasn’t sure what had happened.’ ’’ There

also is no indication that she pursued the matter the

following night shift, from Sunday, March 21, to Monday, March 22, when she again worked on Riverside

with Muizulles. Burr Road, supra, 142 Conn. App. 217.

The first shift that the grievant worked on Woodside

after the suspected incident was the next night, from

Monday, March 22, to Tuesday, March 23. Id. During

that shift, she had occasion to speak with a resident of

Woodside, who told the grievant that, on the previous

Saturday night, Muizulles had been somewhat rough

while helping her get her legs up onto her bed, had

spoken gruffly, and had turned down the television

without asking permission. Id. The resident’s roommate

confirmed that these events had upset the resident, who

had cried for some time afterward. Id., 217–18.

The grievant realized that this was likely the incident

she had overheard Johnson and Leonard discussing
during the Saturday night shift. Id., 218. The grievant

comforted the resident, explained to herthat she should

not have been subjected to such treatment, and

informed herthat she should feel comfortable reporting

it. Id. The grievant suggested that she could arrange for

someone to come and speak to the resident about what

had happened to her, and the resident agreed. Id.

After her shift ended on Tuesday morning, the grievant went home and tried to call a social worker at

Westport. Id. The social worker was not available, however, so the grievant left her three lengthy voice mail

messages reporting what the resident had told her and

urging the social worker to talk to the resident. Id.

The plaintiff subsequently carried out a thorough

investigation of Muizulles’ treatment of the resident. Id.

Its ultimate conclusion was that Muizulles had acted

insensitively, but that her treatment had not risen to

the level of resident abuse or neglect. Id. In light of

Muizulles’ twenty years of employment, with no prior

discipline on her record, the plaintiff gave her a five

day suspension and a final warning. Id.

During its investigation of Muizulles, the plaintiff also

concluded that three staff members—Johnson, the

grievant, and the assistant director of nursing, whom

the social worker had notified of the suspected abuse—

had failed to fulfill their obligations promptly to report

Muizulles’ possible abuse. Id. Johnson received a final

warning and a two day suspension for failing to report

a complaint made by a resident regarding possible

abuse by another staff member. Id. The assistant director of nursing also was suspended because, after she

was informed by the social worker of the possible

abuse, the assistant director of nursing failed to notify

Westport’s director of nursing or another administrator

immediately. Id., 218–19. There is no indication in the

record that Leonard was ever disciplined for her failure

to report what Johnson had told her.

By contrast, the plaintiff terminated the grievant’s

employment on the ground that she had failed to make

a timely report of an allegation of resident abuse. Id.,

219. It subjected her to more serious discipline than

Muizulles, Johnson, and the assistant director of nursing

because, unlike those employees, the grievant already

had a final warning in her employee file. Prior to terminating the grievant’s employment, the plaintiff never

informed her that she was under investigation, nor

afforded her any opportunity to tell her side of the story

or to explain or to clarify why she did not immediately

report her suspicions after her shift had ended on Sunday morning. Id., 233–34. ‘‘This most rudimentary due

process,’’ the arbitrator remarked, ‘‘was not afforded

to the grievant.’’

The grievant grieved her termination, and the defendant took the termination to arbitration pursuant to the
collective bargaining agreement between the parties.

The parties asked the arbitrator to determine: (1)

whether the grievant had been terminated for just

cause; and (2) if not, what the remedy should be.

The arbitrator agreed with the plaintiff that the grievant improperly had delayed reporting an incident of

suspected resident abuse. Specifically, the arbitrator

found that the grievant:(1) was aware, based on training

she had received and simple common sense, that she

was required to report immediately any information

regarding suspected resident abuse to a nursing supervisor or more senior administrator, regardless of the

source of that information; (2) came to believe in the

early hours on Sunday, March 21,4

that Muizulles might

have committed resident abuse, but waited more than

two days, until her shift ended on Tuesday morning,

March 23, to report her suspicion; and (3) reported her

suspicion ‘‘imperfect[ly],’’ by leaving telephone messages for Westport’s social worker, instead of reporting

directly to someone in the proper line of authority.5 On

the basis of these findings, the arbitrator concluded

that ‘‘the grievant was guilty of the offense of failing to

timely report to a nursing supervisor (or higher authority) the information that had come into her possession . . . .’’

In determining whether the plaintiff had just cause

to terminate the grievant for this offense, the arbitrator

recognized that a health care provider ‘‘is under [a]

clear, statutory obligation to report immediately to the

state regulatory body whenever there has been an event

of possible resident abuse,’’ which ‘‘obligation only can

be fulfilled if employees report in a timely manner.

Moreover, and more fundamentally, any delay in

reporting by a staff member leaves the residents at risk

of possible further abuse by the alleged perpetrator;

corrective action by [the administrators] to assure resident well-being inevitably is delayed ifreporting by staff

is delayed.’’ For that reason, the arbitrator credited the

plaintiff’s argument that ‘‘a delay in reporting is almost

as bad as not reporting at all.’’

The arbitrator also concluded, however, that it was

‘‘an important mitigating fact that the grievant was the

one who actually came forward, although belatedly,

and made [the plaintiff] aware of the problem. If the

grievant had not come forward on March 23, it is quite

likely that [the plaintiff] never would have learned of

the insensitive treatment given by Muizulles, nor of

the failure to report by multiple staff members. It is

important to recognize that contribution which the

grievant made, then, albeit belatedly, to help assure the

well-being of the residents . . . .’’ For that reason, the

arbitrator recognized that ‘‘the grievant’s misconduct

arguably was much less egregious than the misconduct

of the others involved,’’ who ‘‘apparently had no intention of making any report.’’6
Ultimately, the arbitrator found as follows: ‘‘The

grievant did fail to make a timely report of what she

had learned on March 20.7 She knew the rule that she

had to report, and to do so without delay. She failed

to fulfill that responsibility in a timely manner. And,

she had a poor disciplinary record, so that placed her

in a worse position than the other staff members

involved . . . . On the other hand, there is the significant mitigating factor that it was the grievant, not the

others, who did come forward and report to [the plaintiff], although belatedly; and it was her reporting [that]

allowed [the plaintiff] to take corrective actions.’’(Footnote added.) Accordingly, the arbitrator concluded that

the plaintiff lacked just cause to terminate the grievant’s

employment. Instead, the arbitrator interpreted the parties’ collective bargaining agreement to mean that

‘‘severe disciplinary action just short of termination was

warranted.’’ The arbitrator therefore determined that

the plaintiff had just cause to suspend the grievant

without pay for one month and to issue her a final

warning and, accordingly, he ordered the grievant reinstated.

The plaintiff filed an application to vacate the arbitration award on the grounds that: (1) the award violated

Connecticut’s clear public policy of protecting residents

in health care facilities from abuse; and (2) the arbitrator exceeded his powers underthe collective bargaining

agreement and refused to hear pertinent evidence. The

defendant filed an application to confirm the award. The

trial courtrejected the plaintiff’s public policy argument

based on the limited scope of judicial review over arbitration decisions, as well as the lack of clear authority

requiring a nursing home employee to be terminated,

rather than disciplined in some other way, for this type

of misconduct. The trial court also determined that,

because the award answered the submitted questions,

the arbitrator did not exceed the scope of his authority.

Accordingly, the trial court rendered judgment denying

the plaintiff’s application to vacate and granting the

defendant’s application to confirm the award.

The plaintiff appealed from the judgment of the trial

court to the Appellate Court on both grounds. With

respect to the public policy claim, the Appellate Court

reversed, concluding that the arbitration award violated

a well-defined public policy against delayed reporting of

suspected abuse of vulnerable nursing home residents.8

Burr Road, supra, 142 Conn. App. 215. Specifically, the

court concluded that, in light of her past record of

misconduct and her failure to report promptly and

through the proper channels, the grievant had demonstrated an ‘‘inability to meet the demands of the public

policy of protection and reporting.’’ Id., 226; see id., 226

n.6. Because the Appellate Court reversed the judgment

of the trial court with respect to the first claim, it

declined to reach the plaintiff’s second claim on appeal,
namely, that the arbitrator had exceeded his authority.

Id., 215. This certified appeal followed. See footnote 1

of this opinion. Additional facts will be set forth as necessary.

On appeal, the defendant argues that there is no basis

for the Appellate Court’s conclusion that an employee

who delays reporting suspected abuse must be terminated in order to protect vulnerable nursing home residents, and that, in concluding to the contrary, the

Appellate Court improperly relied on its own fact-finding, which exceeded the scope of, and was unsupported

by, the arbitration award. Specifically, the defendant

contends that there is no basis in the record for the

Appellate Court’s conclusion that the grievant’s delay

in reporting her suspicions was related to her prior

disciplinary infractions, and, therefore, that she likely

would be unable to meet the demands of public policy

if reinstated. In response, the plaintiff contends that

termination of an employee such as the grievant, with

a documented history of resident abuse, is necessary

in orderto ensure resident safety, and that the Appellate

Court properly relied on the facts found by the arbitrator and conclusions reasonably to be drawn therefrom.

We agree with the defendant, and conclude that none

of the factors we have previously considered when

reviewing public policy challenges to arbitration awards

reinstating terminated employees militate in favor of

vacating the award in the present case.

We begin our analysis with the applicable standard

of review. ‘‘[W]e favor arbitration as a means of settling

private disputes, [thus] we undertake judicial review of

arbitration awards in a manner designed to minimize

interference with an efficient and economical system

of alternative dispute resolution. . . . We will, however, submit to higher scrutiny an arbitration award

that is claimed to be in contravention of public policy.

. . . [P]arties cannot expect an arbitration award

approving conduct which is . . . 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. . . .

‘‘Thus, when a party challenges a consensual arbitral

award on the ground that it violates public policy, and

where that challenge has a legitimate, colorable basis,

de novo review of the award is appropriate in order to

determine whether the award does in fact violate public

policy. . . . As this court maintained in [State v.

AFSCME, Council 4, Local 391, 309 Conn. 519, 528, 69

A.3d 927 (2013)], we defer to the arbitrator’s interpretation of the agreements regarding the scope of the [contract] provision . . . . We conclude only that as a
reviewing court, we must determine, pursuant to our

plenary authority and giving appropriate deference to

the arbitrator’s factual conclusions, whether the contract provision in question violates those policies.’’

(Citations omitted; emphasis in original; internal quotation marks omitted.) Stratford v. AFSCME, Council 15,

Local 407, 315 Conn. 49, 55–56, 105 A.3d 148 (2014).

To determine whether an arbitration award must be

vacated for violating public policy, we employ a twopronged analysis. See id., 56. First, we must determine

whetherthe award implicates any explicit, well-defined,

and dominant public policy. See id. To identify the existence of a public policy, we look to statutes,regulations,

administrative decisions, and case law. See id. Second,

if the decision of the arbitrator does implicate a clearly

defined public policy, we then determine whether the

contract, as construed by the arbitration award, violates

that policy. See id.

In the present case, with regard to the first prong

of the analysis, neither party actively challenges the

Appellate Court’s conclusion that Connecticut has a

clear, well-defined, and dominant public policy of protecting vulnerable residents in skilled nursing facilities

from abuse, and that this policy encompasses the

prompt reporting of any incidents of suspected abuse.

See Burr Road, supra, 142 Conn. App. 224. Accordingly,

the sole issue before us is whether, under the circumstances of the present case, an arbitration award of a

one month unpaid suspension and final warning, rather

than termination of the grievant, violates that public

policy.9

‘‘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.’’(Internal quotation marks omitted.) Stratford v. AFSCME, Council 15, Local 407, supra, 315

Conn. 58. Rather, a party seeking to vacate an arbitration award reinstating a terminated employee ‘‘bears

the burden of proving that illegality or conflict with

public policy is clearly demonstrated’’; (internal quotation marks omitted) State v. New England Health Care

Employees Union, District 1199, AFL-CIO, 271 Conn.

127, 136, 855 A.2d 964 (2004); and that ‘‘nothing less

than the termination of [the grievant’s] employment’’

will suffice to vindicate the public policy at issue.(Internal quotation marks omitted.) Stratford v. AFSCME,

Council 15, Local 407, supra, 59. ‘‘It bears emphasizing,

moreover, that 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.’’ (Internal quotation marks omitted.) State v. New

England Health Care Employees Union, District 1199,

AFL-CIO, supra, 271 Conn. 136.

I
GENERAL PRINCIPLES

Since this court first recognized the public policy

exception to the general rule of deference to an arbitration award made pursuant to an unrestricted submission; see Board of Trustees v. Federation of Technical

College Teachers, 179 Conn. 184, 195, 425 A.2d 1247

(1979); we have decided one half dozen cases in which

an employer sought to vacate on public policy grounds

an award reinstating an employee who had been terminated for misconduct.10 In one half of those cases, we

held that reinstatement of the terminated employee violated a clear public policy of the state. See State v.

AFSCME, Council 4, Local 391, supra, 309 Conn. 521

(correction officer engaged in persistent sexual harassment of coworkers); Groton v. United Steelworkers of

America, 254 Conn. 35, 36–37, 757 A.2d 501 (2000)

(weighmaster at municipal landfill pleaded nolo contendere to embezzlement charge); State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 468–69, 747

A.2d 480 (2000) (correction officer placed obscene, racist telephone call to state senator). In the other three

cases, we upheld the decision of the arbitrator reinstating the terminated employee. See Stratford v. AFSCME,

Council 15, Local 407, supra, 315 Conn. 50–52 (police

officer misrepresented history of alcohol use during

official medical exam); State v. New England Health

Care Employees Union, District 1199, AFL-CIO, supra,

271 Conn. 129–31 (Department of Mental Retardation11

employee shoved agitated client into chair); South

Windsor v. South Windsor Police Union Local 1480,

Council 15, 255 Conn. 800, 802–805, 770 A.2d 14 (2001)

(police officer deemed unfit for duty after drawing gun

on trespassers playing basketball in school gym). This

has, moreover, been an area of the law in which consensus has proved elusive. See Stratford v. AFSCME,Council 15, Local 407, supra, 62 (dissenting opinion authored

by Justice Palmer and joined by Justice Espinosa); State

v. AFSCME, Council 4, Local 391, supra, 542 (dissenting opinion authored by Justice Eveleigh); State v.

New England Health Care Employees Union, District

1199, AFL-CIO, supra, 145 (opinion dissenting in part

authored by Justice Zarella); Groton v. United Steelworkers of America, supra, 53 (dissenting opinion

authored by Justice Katz and joined by Justices Norcott

and Palmer); see also State v. AFSCME, Council 4,

Local 387, AFL-CIO, supra, 478 (opinion by Justice

Peters concurring in result reached by majority).

Accordingly, to assure consistent, principled decision

making in cases of this nature, we take this opportunity

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. Specifically, in
determining whether termination of employment was

necessary to vindicate the public policies at issue, both

the majority and the dissenting opinions of this court

have, either expressly or implicitly, focused on four

principal 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 See, e.g.,

State v. AFSCME, Council 4, Local 391, supra, 309

Conn. 538–41. In the remainder of this part of the opinion, we discuss each of those factors, and clarify the

extent to which the factual findings of the arbitrator

control or affect the reviewing court’s analysis under

each factor. In part II of this opinion, we consider each

factor as applied to the present appeal.

A

The first 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. See id., 540–41;

South Windsor v. South Windsor Police Union Local

1480, Council 15, supra, 255 Conn. 823; State v.

AFSCME, Council 4, Local 387, AFL-CIO, supra, 252

Conn. 477; accord Eastern Associated Coal Corp. v.

United Mine Workers of America District 17, 531 U.S.

57, 66, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000) (relying

on fact thatreinstatement order did not violate ‘‘specific

provision of any law or regulation’’). 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. See State v. AFSCME,

Council 4, Local 391, supra, 309 Conn. 549–50 (Eveleigh, J., dissenting). Whether sources of public policy

themselves mandate termination is a question of law

subject to plenary review. See id., 528–29; State v.

AFSCME, Council 4, Local 387, AFL-CIO, supra,

475–76.

B

The second factor we consider is whether the nature

of the employment at issue implicates public safety or

the public trust. See, e.g., Stratford v. AFSCME, Council

15, Local 407, supra, 315 Conn. 68–71 (Palmer, J., dissenting) (community places special public trust in

police officers, who are granted broad authority and

wide discretion in maintaining law and order); Groton

v. United Steelworkers of America, supra, 254 Conn.

48–49 (employer should not be required to retain

employee established to have stolen public funds while

in position of financial trust); Board of Police Commissioners v. Stanley, 92 Conn. App. 723, 741–42, 887 A.2d

394 (2005) (collecting cases). 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, 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. See generally annot., 112 A.L.R.5th 263 (2003 and Supp. 2013);

see also A. Hodges, ‘‘Judicial Review of Arbitration

Awards on Public Policy Grounds: Lessons from the

Case Law,’’ 16 Ohio St. J. on Disp. Resol. 91, 114–20

(2000). 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. See generally Brooklyn Center v. Law

Enforcement Labor Services, Inc., 635 N.W.2d 236, 244

(Minn. App. 2001) (because police are held out as

deserving of public trust and have unique opportunities

to exploit that trust, municipality has special duty not

to employ abusive officer). In most private sector disputes, by contrast, the law presumes that the parties

have secured their own interests through their contractual arrangements, including the agreement to submit

any disputes to binding arbitration; see J. Gordon,

‘‘Common Enterprise and Multiple Investors: A Contractual Theory for Defining Investment Contracts and

Notes,’’ 1988 Colum. Bus. L. Rev. 635, 667–68 (1988);

and that the customers or clients whom they serve may

vote with their feet and protect their own interests

should they deem the conduct of an employee to be

unacceptable. See A. Eisenberg, ‘‘When HMO Patients

Can’t Get No Satisfaction,’’ 4 DePaul J. Health Care L.

367, 377 (2001).

When courts have barred the reinstatement of private

sector employees, those employees typically have

worked in fields in which the misconduct involved

could lead to disastrous consequences not only fortheir

employer’s customers but also for the public at large.

See Stead Motors of Walnut Creek v. Automotive

Machinists Lodge No. 1173, International Assn. of

Machinists & Aerospace Workers, 886 F.2d 1200, 1214

(9th Cir. 1989) (Stead Motors), cert. denied, 495 U.S.

946, 110 S. Ct. 2205, 109 L. Ed. 2d 531 (1990); see also

Delta Air Lines, Inc. v. Air Line Pilots Assn., International, 861 F.2d 665, 672 (11th Cir. 1988) (intoxicated

commercial airline pilot), cert. denied, 493 U.S. 871, 110

S.Ct. 201, 107 L. Ed. 2d 154 (1989);IowaElectric Light &

Power Co. v. Local Union 204 ofInternational Brotherhood of Electric Workers (AFL-CIO), 834 F.2d 1424,

1426 (8th Cir. 1987) (nuclear power plant machinist

intentionally violated federally mandated secondary

containment rules); Amalgamated Meat Cutters &

Butcher Workmen of North America AFL-CIO, Local

Union 540 v. Great Western Food Co., 712 F.2d 122,
124 (5th Cir. 1983) (‘‘[a truck] driver who imbibes the

spirits endangers not only his own life, but the health

and safety of all other drivers’’); Black v. Cutter Laboratories, 43 Cal. 2d 788, 807, 278 P.2d 905 (1955) (potential

terrorist working in private plant producing military

and civilian antibiotics), cert. dismissed, 351 U.S. 292,

76 S. Ct. 824, 100 L. Ed. 1188 (1956).

In 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. See State v.

AFSCME, Council 4, Local 391, supra, 309 Conn. 519

(correction officer); Groton v. United Steelworkers of

America, supra, 254 Conn. 35 (weighmaster at municipal landfill); State v. AFSCME, Council 4, Local 387,

AFL-CIO, supra, 252 Conn. 467 (correction officer). In

State v. AFSCME, Council 4, Local 391, supra, 538, for

example, in upholding the vacatur of the arbitration

award, we emphasized that ‘‘the [grievant’s offensive]

conduct occurred in a prison in the presence of other

employees and inmates, where the need for order, discipline and a culture of mutual respect among employees

is particularly acute.’’ This factor also hinges on general

questions of law and policy and is, therefore, subject

to plenary judicial review.

C

The third factor we consider is the relative ‘‘egregiousness’’ of the grievant’s offense. See Stratford v.

AFSCME, Council 15, Local 407, supra, 315 Conn. 61;

State v. AFSCME, Council 4, Local 391, supra, 309

Conn. 534, 538; see also Metropolitan District Commission v. Local 184, Council 4, AFSCME, AFL-CIO, 77

Conn. App. 832, 845–46, 825 A.2d 218 (2003) (collecting

cases). 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 grievant 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. See

Stratford v. AFSCME, Council 15, Local 407, supra,

59–60 and n.4; State v. AFSCME, Council 4, Local 391,

supra, 538; State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 271 Conn.

138–41; Groton v. United Steelworkers of America,
supra, 254 Conn. 48–49; State v. AFSCME, Council 4,

Local 387, AFL-CIO, supra, 252 Conn. 477–78.

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. See

State v. New England Health Care Employees Union,

District 1199, AFL-CIO, 265 Conn. 771, 778, 830 A.2d

729 (2003). We defer as well to the arbitrator’s ultimate

determination whether termination was a just or appropriate punishment for the conduct at issue. We also

agree with the plaintiff, however, that, for purposes of

the public policy analysis, our determination of whether

the conduct in question was so egregious that any punishment short of termination would offend public policy

is notrestricted to those findings. See State v. AFSCME,

Council 4, Local 387, AFL-CIO, supra, 252 Conn. 479

(Peters, J., concurring); Schoonmaker v. Cummings &

Lockwood of Connecticut, P.C., 252 Conn. 416, 430, 747

A.2d 1017 (2000). A broader review is required because

the arbitrator, in determining whether there was just

cause or some other contractual basis for termination,

may focus on case specific considerations such as how

the employer has disciplined other employees under

similar circumstances. Judicialreview, by contrast, necessarily transcends the interests of the 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. See

C. Fox & B. Gruhn, ‘‘Toward a Principled Public Policy

Standard: Judicial Review of Arbitrators’ Decisions,’’

1989 Det. C.L. Rev. 863, 867, 872, 896 (1989). Accordingly, we review de novo the question whether the remedy fashioned by the arbitrator is sufficient to vindicate

the public policies at issue.

D

The fourth factor we consider is whether the grievant

is so ‘‘incorrigible’’ as to require termination. See Stratford v. AFSCME, Council 15, Local 407, supra, 315

Conn. 59; State v. AFSCME, Council 4, Local 391, supra,

309 Conn. 538. Put differently, in light of the grievant’s

full employment history, is there a substantial risk that,

should a court uphold the arbitration award ofreinstatement, this particular employee will reengage in the

offending conduct? See State v. New England Health

Care Employees Union, District 1199, AFL-CIO, supra,

271 Conn. 138–39, 141. 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. See id., 138–41; see

also Stratford v. AFSCME, Council 15, Local 407,

supra, 59 and 61 n.6; State v. AFSCME, Council 4, Local

391, supra, 538; State v. New England Health Care

Employees Union, District 1199, AFL-CIO, supra, 271

Conn. 149–50 (Zarella, J., dissenting in part); South

Windsor v. South Windsor Police Union Local 1480,

Council 15, supra, 255 Conn. 821. We also consider

whether the penalty imposed by the arbitrator is severe

enough to deter future infractions by the grievant or

others. See Stratford v. AFSCME, Council 15, Local

407, supra, 58–59.

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. See Stead Motors, supra, 886 F.2d 1213;

Stratford v. AFSCME, Council 15, Local 407, supra,

315 Conn. 61 n.6. 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. See,

e.g., State v. AFSCME, Council 4, Local 391, supra, 309

Conn. 535–40 (concluding that grievant was incorrigible

because he was aware of employer’s zero tolerance

policy but had, nevertheless,repeatedly and openly harassed complainant and others over substantial period

of time, even after being asked to desist).

II

APPLICATION OF FACTORS TO THIS CASE

Turning to the record in the present case, we conclude that each of these four factors is either neutral

or weighs against vacating the arbitration award before

us. Accordingly, we conclude that the plaintiff has not

met the heavy burden of demonstrating that reinstating

the grievant clearly violates the public policy of Connecticut.

We first consider whether sources or manifestations

of the relevant public policy indicate that the public

policy can be vindicated only if all workplace violations

thereof result in termination of the offender. Connecticut’s well established public policies of protecting vulnerable residents who reside in skilled nursing facilities,

and of promptly reporting any suspected abuse or

neglect thereof, are embodied, respectively, in General

Statutes §§ 19a-550 and 17b-451.13 Both policies are further implemented in § 19-13-D8t of the Regulations of

Connecticut State Agencies.

Section 19a-550, Connecticut’s patients’ bill of rights,

provides in relevant part: ‘‘(b) There is established a

patients’ bill of rights for any person admitted as a

patient to any nursing home facility, residential care

home or chronic disease hospital. . . . The patients’

bill of rights shall provide that each such patient . . .
(8) is free from mental and physical abuse, corporal

punishment, involuntary seclusion and any physical or

chemical restraints imposed for purposes of discipline

or convenience . . . .’’ By way of remedy, the statute

creates a private right of action for any patient so

harmed; General Statutes § 19a-550 (e); and also entitles

the patient to seek administrative relieffrom the Department of Social Services or the Department of Public

Health. General Statutes § 19a-550 (b) (20). Notably,

the patients’ bill of rights does not provide for any

particular penalty for offending nursing home

employees.

Section 17b-451 mandates the prompt reporting of

suspected abuse. Subsection (a) of § 17b-451 provides

in relevant part that ‘‘any registered nurse, any nursing

home administrator, nurse’s aide or . . . staff person

employed by a nursing home facility . . . who has reasonable cause to suspect or believe that any elderly

person has been abused, neglected, exploited or abandoned . . . shall, not later than seventy-two hours after

such suspicion or belief arose, report such information

or cause a report to be made in any reasonable manner

to the Commissioner of Social Services or to the person

or persons designated by the commissioner to receive

such reports. Any person required to report under the

provisions of this section who fails to make such report

within the prescribed time period shall be fined not

more than five hundred dollars, except that, if such

person intentionally fails to make such report within

the prescribed time period, such person shall be guilty

of a class C misdemeanor for the first offense and a

class A misdemeanor for any subsequent offense.’’ The

plaintiff suggests that, because the statute provides only

seventy-two hours for its administrators to report cases

of suspected abuse to the Commissioner of Social Services, to facilitate statutory compliance Westport must

in turn require that its nursing staff immediately report

any such suspicions to their superiors.

Whether the plaintiff was warranted in establishing

and strictly enforcing prompt internalreporting requirements, however, goes to the substance of the arbitrator’s determination that the plaintiff lacked just cause

for terminating the grievant, the merits of which are

not at issue in this certified appeal. The question we

mustresolve is not whether § 17b-451 mandates prompt

internal reporting by nursing home employees, but,

rather, whether the statute evidences a determination

by the legislature that one who fails to timely report

suspected abuse of nursing home residents is, ipso

facto, unfit for continued employment in such a facility.

We perceive no such legislative intent. The statute

clearly provides that a person whose failure to timely

report is inadvertent—as the grievant’s arguably was,

and as Westport’s surely would have been until the

grievant belatedly reported her suspicions—is subject

only to a maximum fine of $500. More importantly,
the statute provides that one who intentionally fails to

timely report is guilty of a class A misdemeanor for

‘‘any subsequent offense.’’ General Statutes § 17b-451

(a). In other words, the legislature envisioned that a

health care worker might be permitted to remain in her

position even after having repeatedly and intentionally

violated the provisions of the statute.

Rules intended to protect the residents of nursing

homes from abuse and neglect are further specified

in § 19-13-D8t of the Regulations of Connecticut State

Agencies. The regulations require immediate telephone

reporting to the Department of Public Health of any

complaint of patient abuse, to be followed by a written

report within seventy-two hours. Regs., Conn. State

Agencies § 19-13-D8t (g). Although the regulations

expressly provide that a facility’s medical director has

the responsibility to ‘‘suspend or terminate the facility

privileges of a medical staff member [who] is unable or

unwilling to adequately care for a patient in accordance

with . . . statutes and regulations . . . or facility bylaws’’; id., § 19-13-D8t (h) (2) (H); no such provision

is made for members of a nursing staff who either

perpetrate or fail promptly to report patient abuse or

neglect. Instead, the regulations simply require that

facility administrators make ‘‘[a] determination . . . as

to what preventative measures shall be implemented’’

in such cases; id., § 19-13-D8t (g) (5); and that the

Department of Public Health maintain a registry of nursing aides that records, inter alia, any final determination

by the Department of Public Health that an aide has

engaged in resident abuse or neglect. Id., § 19-13-D8t

(l) (2). As with the governing statutes, then, we read

the Department of Public Health regulations to mean

that a nursing facility is not required to terminate a

health care worker who has failed to report an incident

of resident abuse in order adequately to protect its residents.

We next consider the second factor, namely, whether

reinstatement of the grievant would compromise public

safety or violate the public trust. The plaintiff is a private

limited liability company, and there is no indication in

the record that Westport is anything other than a private, for-profit nursing home. As we previously have

noted herein, it is the rare case in which a court will

vacate on public policy grounds an arbitration decision

reinstating a private sector employee who has been

unjustly terminated. Nor is this a case like Delta Air

Lines, Inc. v. Air Line Pilots Assn., International,

supra, 861 F.2d 665, in which reinstatement of the grievant could by itself pose a serious threat to public safety.

We acknowledge, however, that residential nursing

facilities do represent something of an exceptional case

relative to other private sector employers. Nursing

home residnts may lack the physical, mental, or financial wherewithal to leave an unsafe or undesirable facil-
ity. The state, in its traditional role as parens patriae,

or parent of the nation, has an established interest in

protecting its most vulnerable citizens, which extends

to adult residents of skilled nursing facilities. Cf. Connecticut v. Physicians Health Services of Connecticut,

Inc., 103 F. Supp. 2d 495, 505 (D. Conn. 2000) (discussing cases involving group home residents), aff’d,

287 F.3d 110 (2d Cir.), cert. denied, 537 U.S. 878, 123

S. Ct. 77, 154 L. Ed. 2d 133 (2002); Support Ministries

for Persons with AIDS, Inc. v. Waterford, 799 F. Supp.

272, 277 (N.D.N.Y. 1992) (state’s ‘‘quasi-sovereign interest in the health and well-being of its citizens’’ extends

to residential care facility for patients with AIDS). Moreover, many patients in private nursing facilities may be

the beneficiaries of Medicaid or other public funding

sources, so that the financial transactions involved are

not purely private. Indeed, whether a medical facility

is publicly or privately owned and operated may be

indiscernible to the average patient. Consistent with

these principles, courts from other jurisdictions considering whether to vacate, for public policy reasons, arbitration awards reinstating nurses and nursing assistants

have done so by reference to the otherfactors discussed

in this opinion, without expressly distinguishing public

from private facilities. Accordingly, we conclude that

this factoris neutral with respect to vacating the arbitration award.

We next consider the third factor, namely, whether

the grievant’s conduct was so egregious that no disciplinary measure short of termination will vindicate the

relevant public policies. We begin by observing that the

grievant’s misconduct in the present case falls at the

periphery of the ultimate public policy concern—protecting vulnerable nursing home residents from abuse

and neglect. The grievant did not actually abuse any

residents. Rather, she merely delayed reporting a second-hand conversation she had overheard simply suggesting that someone else might have committed abuse,

and only delayed reporting for a few days. There is no

indication in the record that any resident came to harm

as a result of her delay, or that the plaintiff suffered

any adverse legal consequences. In fact, the plaintiff

itself ultimately determined that the incident in question

did not constitute abuse. Most significantly, the arbitrator did not find that the grievant intentionally chose to

neglect her reporting duties or to place residents atrisk.

To the contrary, the arbitrator found, as a significant

mitigating factor, that it was only the grievant who

actually came forward, albeit belatedly, and made the

plaintiff aware of the problem. In this act, she distinguished herself from Johnson and Leonard, who were

the original source of the grievant’s suspicions, and

from the Westport administrator, to whom she was

obliged to report.14 The arbitrator thus found that, but

for the grievant’s contribution, Muizulles’ insensitive

treatment of the resident at Woodside quite likely never
would have come to light, and, therefore, that ‘‘the grievant’s misconduct arguably was much less egregious

than the misconduct of the others involved.’’ Although

he did not expressly identify them as mitigating factors,

the arbitrator also found that the grievant: (1) actively

and promptly investigated the possible abuse on her

own initiative;(2) comforted and counseled the resident

upon learning of the incident with Muizulles; and (3)

left multiple, lengthy messages for the social worker

that same day, urging her to speak with the resident

about the incident. There is abundant evidence in the

record, then, to support the conclusion that, although

the grievant acted improperly in delaying reporting her

suspicions and failing to report through the proper

channels, her conduct was devoid of insidious

motives.15

Our review of the case law from both Connecticut

and other jurisdictions confirms our conclusion that

the grievant’s conduct was not so egregious as to render

her reinstatement a violation of public policy. In State v.

New England Health Care Employees Union, District

1199, AFL-CIO, supra, 271 Conn. 127, we considered

a public policy challenge to an arbitration award

reinstating an employee found to have physically

abused a blind and mentally handicapped resident of

a training school. The grievant in that case had deliberately shoved the agitated resident into a chair, in violation of facility policy, resulting in a laceration to the

resident’s arm. Id., 131. In holding that a thirty day

disciplinary suspension was adequate to vindicate the

public policy against abuse of Department of Mental

Retardation16 clients, we observed that there was no

evidence of intent to harm the resident, the magnitude

of the harm was minimal, and the conduct itself was

not criminal in nature. Id., 138–42. The same can be

said of the present case, which did not implicate actual

resident abuse.

Outside of Connecticut, a number of our sister courts

have rejected public policy challenges to the reinstatement of nurses or nursing assistants, even in cases in

which the conduct at issue was more egregious, and

the risk to patient safety more pronounced, than in the

present case. See, e.g., Boston Medical Center v. Service

Employees International Union, Local 285, 260 F.3d

16, 25–26 (1st Cir. 2001) (upholding arbitration award

reinstating nurse whose clinical misjudgments resulted

in death of septic infant), cert. denied, 534 U.S. 1083,

122 S. Ct. 816, 151 L. Ed. 2d 700 (2002); MidMichigan

Regional Medical Center–Clare v. Professional

Employees Division of Local 79, Service Employee

International Union, AFL-CIO, 183 F.3d 497, 504 (6th

Cir. 1999) (reasoning that ‘‘[e]ven highly skilled professionals err on occasion’’ and concluding that reinstatement of intensive care nurse who had twice tried to

administer improper medication and once negligently

operated cardiac defibrillator did not offend public pol-
icy); Maggio v. Local 1199, 702 F. Supp. 989, 991, 996

(E.D.N.Y.) (upholding reinstatement of nurse’s aide

whom arbitratorfound to have inadvertently mistreated

two elderly patients), aff’d, 880 F.2d 1319 (2d Cir.), cert.

denied, 493 U.S. 936, 110 S. Ct. 329, 107 L. Ed. 2d 319

(1989); Brigham & Women’s Hospital v. Massachusetts

Nurses Assn., 684 F. Supp. 1120, 1121, 1125 (D. Mass.

1988) (upholding award reinstating nurse with history

of five disciplinary incidents, including improper administration of medication, refusal to follow orders, and

failure to notify physician of medical emergency);

Teamsters Union Local No. 2, International Brotherhood of Teamsters v. C.N.H. Acquisitions, Inc., 350

Mont. 18, 23–24, 204 P.3d 733 (2009) (fact that nurse

might have placed vulnerable patients at risk did not

mean that reinstatement would violate public policy).

By the same token, in the cases in which courts have

vacated arbitration awards reinstating terminated nursing professionals, including those cited by the plaintiff,

the conduct at issue was objectively more dangerous

than that of the grievant in the present case. See, e.g.,

Russell Memorial Hospital Assn. v. United Steelworkers of America, 720 F. Supp. 583, 584, 587 (E.D. Mich.

1989) (arbitrator found that nurse had ‘‘a propensity

for misconduct’’ and that her repeated insubordination

and negligent failure to administer medication were

‘‘ ‘extremely serious’ ’’); Illinois Nurses Assn. v. Board

of Trustees of University of Illinois, 318 Ill. App. 3d

519, 530–32, 741 N.E.2d 1014 (critical care nurse failed

timely to order and administer medication, charted that

she had administered medication when she had not,

failed to chart or report pacemaker malfunction, and

had long history of inattentive work attitude and below

average nursing skills), appeal denied, 194 Ill. 2d 567,

747 N.E.2d 352 (2001). Accordingly, we conclude that

the egregiousness factor does not support vacating the

arbitration award in the present case on public policy grounds.

Lastly, we consider the fourth factor, namely,

whether the grievant is so incorrigible as to require

termination. As previously noted, this is a factual question, for which we deferto the findings of the arbitrator.

In the present case, the arbitrator did not find that the

grievant was likely to reoffend if reinstated. Rather, the

fact that he ordered her reinstated to a position of

direct patient care strongly suggests that the arbitrator

discounted the likelihood of recidivism, and that he

deemed a one month unpaid suspension to be a sufficiently severe punishment to deter any future misconduct of this sort. See Illinois Nurses Assn. v. Board of

Trustees of University of Illinois, supra, 318 Ill. App.

3d 532. Nothing in the record leads us to gainsay that

conclusion. Accordingly, this factor also weighs against

vacating the decision of the arbitrator.

The Appellate Court majority, in concluding other-
wise, improperly substituted its judgment for that of

the arbitrator. That court reasoned that reinstatement

of the grievant would place ‘‘the residents [of Westport]

at risk of possible further abuse,’’ because her ‘‘prior

record of related disciplinary actions and two prior

final warnings demonstrated her inability to meet the

demands of . . . public policy . . . .’’ (Emphasis

added.) Burr Road, supra, 142 Conn. App. 226–27. The

Appellate Court further opined that the grievant had

‘‘a history of three incidents of similar misconduct,

including two prior final warnings, within a period of

five years.’’ (Emphasis added.) Id., 229. That court’s

analysis, then, was founded on the premise that the

grievant had engaged in a pattern ofrelated misconduct,

despite having twice received final warnings and, therefore, that she could be expected to offend again if reinstated.

The arbitrator, however, never found that the grievant’s delay in reporting Muizulles’ possible abuse was

in any way related or similar to the grievant’s prior

incidents of resident abuse and insubordination. The

incident for which the grievant was terminated was not

one in which she personally engaged in physically or

verbally abusive behavior, or even in which she

attempted to cover-up or delay reporting abuse in which

she had been involved. Rather, she merely overheard

a conversation suggesting that her supervisor might

possibly have made a resident cry. Her transgression

in this instance was not rudeness, heavy-handedness,

or insubordination. Nor did she exhibit indifference to

the needs and suffering of the residents for whom she

cared. To the contrary, upon learning that abuse might

have taken place, she immediately set about trying to

investigate it and, when she learned the truth, she

offered the resident her compassionate support and

assistance. The grievant’s misstep, rather, was that she

went about helping in the wrong way. She failed to

follow proper protocol, which required that she immediately report her suspicions to a Westport administrator,

who was better situated than she to conduct a prompt

and thorough investigation and to comply with the relevant legal requirements. The grievant made a serious

mistake in this respect, but the arbitrator did not find

that she had made such a mistake before. There is

nothing in the record to suggest that either: (1) after

receiving a one month unpaid suspension, the grievant

is likely to repeat this error in the future; or (2) her

failure to timely and properly report her suspicions

bespeaks any ongoing proclivity toward resident abuse.

Accordingly, the arbitrator’s implicit finding that the

grievant was not incorrigible was not clearly erroneous.

Lastly, we reject the plaintiff’s contention that termination was necessary because the grievant previously

had received two ‘‘final’’ warnings. ‘‘[C]onsiderations of

an employer’s subjective policies, even a zero-tolerance

policy . . . do not in any manner constitute public pol-
icy and are thus not relevant to our inquiry.’’ (Internal

quotation marks omitted.) State v. AFSCME, Council

4, Local 391, supra, 309 Conn. 531. The plaintiff is,

of course, free to adopt any legal policy of employee

discipline. When contracting with the defendant, the

plaintiff could have held out for terms in the collective

bargaining agreement that would allow it to terminate

any employee who commits an infraction after having

received a final warning, without the possibility of grievance or appeal. See id., 547–48, 556–57 (Eveleigh, J.,

dissenting). It did not. Rather, both parties agreed that

an arbitrator would ultimately determine the fairness

and reasonableness of the plaintiff’s disciplinary policies and actions. In this instance, the arbitrator concluded that strictly enforcing a final warning policy,

under the circumstances, would be unjust. Having

agreed to delegate that decision to the arbitrator, the

plaintiff cannot now be heard to complain that it should

not be required to give the grievant a second chance.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

consider the plaintiff’s remaining claims on appeal.

In this opinion the other justices concurred.

* This case originally was 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 Robinson was

not present when the case was argued before the court, he has read the

record and briefs and listened to a recording of the oral argument prior to

participating in this decision.

1 We granted the defendant’s petition for certification to appeal, limited

to the following issue: ‘‘Did the Appellate Court properly determine that the

trial court improperly confirmed the arbitration award because such award

violated public policy?’’ Burr Road Operating Co. II, LLC v. New England

Health Care Employees Union, District 1199, 309 Conn. 909, 68 A.3d 662

(2013).

2 Although the arbitrator suggests that these notations had important significance under the collective bargaining agreement, that significance is not

explained in the arbitration award.

3 We note that, although the arbitrator’s decision sets forth this quotation,

it does not identify Kim or provide any further detail about that person’s

relationship to Muizulles or the present case.

4

In his award, the arbitrator at times suggests that the grievant learned of

the possible abuse on Saturday, March 20. However, in light of the arbitrator’s

finding that she overheard the conversation between Leonard and Johnson

‘‘later’’ in the night shift, which ran from 11 p.m. on March 20 to 7 a.m. on

March 21, we presume that those events must have transpired sometime

during the early morning hours of March 21.

5 Because the person suspected of possible abuse was also her supervisor,

the arbitrator concluded that the grievant was required to report the matter

to someone else in the proper line of authority. Specifically, the arbitrator

found that the grievant had other suitable options available, such as waiting

to see the incoming day shift supervisor on the Sunday morning following

her night shift, or calling Westport’s director of nursing, its administrator,

or any other nursing supervisor.

6

In addition, the arbitrator reasoned that a nursing home operator should

‘‘not want to create a huge disincentive to reporting, if and when an employee

for whatever reason has hesitated or delayed initially in reporting possible

resident abuse. If the disciplinary approach is, once you have delayed you

will be terminated even if you then make a belated report, then that creates

a perverse incentive to never report. The belated reporter ends up being

fired as the direct consequence of coming forward.’’

7 See footnote 4 of this opinion.

8

Judge Bear authored a dissenting opinion, in which he concluded, pursuant to State v. New England Health Care Employees Union, District 1199,
ALF-CIO, 271 Conn. 127, 855 A.2d 964 (2004), that the public policy at issue

did not mandate termination of the grievant. Burr Road, supra, 142 Conn.

App. 247. Judge Bear suggested that ‘‘[t]his case has a subtext of the age

old response of unfair punishment of the bearer of bad tidings’’; id., 237

n.3; and that the Appellate Court majority, in vacating the award, had

‘‘improperly and unnecessarily displac[ed] our courts’ long-standing protection of the private arbitration process . . . .’’ Id., 243.

9 For the purposes of this opinion, we take the public policy at issue to

be the narrow one of prompt reporting of suspected abuse. See South

Windsor v. South Windsor Police Union, Local 1480, 255 Conn. 800, 816,

770 A.2d 14 (2001). The outcome of our analysis would be no different,

however, were we to consider the broader policy of protecting vulnerable

residents in skilled nursing facilities from abuse.

10 During that time, the Appellate Court has heard numerous additional

appeals in which similar claims were presented. See, e.g., Hartford v. Hartford Municipal Employees Assn., 134 Conn. App. 559, 39 A.3d 1146 (2012),

cert. denied, 305 Conn. 904, 44 A.3d 180 (2012); Board of Police Commissioners v. Stanley, 92 Conn. App. 723, 887 A.2d 394 (2005); Metropolitan District

Commission v. Local 184, Council 4, AFSCME, AFL-CIO, 77 Conn. App.

832, 825 A.2d 218 (2003); South Windsor v. South Windsor Police Union,

41 Conn. App. 649, 677 A.2d 464, cert. denied, 239 Conn. 926, 683 A.2d 22

(1996); State v. Council 4, AFSCME, 27 Conn. App. 635, 608 A.2d 718 (1992).

11 In 2007, the Department of Mental Retardation was renamed the Department of Developmental Services. See Public Acts 2007, No. 07-73.

12 By identifying these factors, we do not preclude the possibility that, in

an exceptional case, other factors not enumerated herein might prove relevant or even dispositive.

13 We note that §§ 19a-550 and 17b-451 have been amended by our legislature since the events underlying the present appeal. See, e.g., Public Acts

2013, No. 13-208, § 55; Public Acts 2013, No. 13-250, § 4. These amendments,

however, have no bearing on the merits of this appeal. In the interest of

simplicity, we refer to the current revision of these statutes.

14 Notably, the only Westport employee who appears to have properly

reported the incident was the social worker in whom the grievant chose

to confide.

15 We are not persuaded by the plaintiff’s contention that treating the

grievant’s belated reporting of her suspicions as a mitigating factor sends

other employees the message that they have carte blanche to delay reporting

suspected abuse so long as they eventually fulfill their reporting obligation.

The plaintiff has failed to demonstrate, and the arbitrator clearly did not

believe, that a one month unpaid suspension is not a severe enough sanction

to encourage prompt reporting. Rather, the arbitrator reasonably concluded

that a sanction short of termination may accomplish the twin objectives of

punishing the failure to promptly report while still incentivizing employees

who have not immediately reported their suspicions to do so without further delay.

16 See footnote 11 of this opinion.