
    STATE of Connecticut v. CONNECTICUT EMPLOYEES UNION INDEPENDENT et al.
    No. 19590.
    Supreme Court of Connecticut.
    Argued March 31, 2016. Decided Aug. 30, 2016.
    Barbara J. Collins, Hartford, 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).
    ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
    
      
      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.
    
   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, Connecticut Employees Union Independent, appeals 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 for the previous eleven years, the 4 p.m. to midnight shift as a "skilled maintainer" 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 of the 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, alcohol abuse and drug-free workplace policy, 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. 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. 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." (Internal quotation marks omitted.) Id., at 135, 855 A.2d 964.

"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., at 135-36, 855 A.2d 964.

"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., at 136, 855 A.2d 964. "[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." (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., at 137, 855 A.2d 964.

Looking to our statutory, regulatory and decisional law, we conclude that there exists an explicit, well-defined 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. 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. 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., at 59, 105 A.3d 148.

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." Id., at 634, 114 A.3d 144. "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., at 634-35, 114 A.3d 144.

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., at § 5-240-5a (a); the employer also is authorized to respond with a lesser sanction such as a reprimand; see id., at § 5-240-2a; or a suspension with reduced or no pay. See id., at § 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." (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, or local 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.

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, 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. at 635-36, 114 A.3d 144. The second Burr Road factor "hinges on general questions of law and policy and is, therefore, subject to plenary judicial review." Id., at 637, 114 A.3d 144.

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 Air Lines, Inc. v. Air Line 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 eighteen-wheel 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 or the 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, AFL-CIO, 59 Conn.App. 793, 804-806, 758 A.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). 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, AFL-CIO-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 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.... 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. at 637-38, 114 A.3d 144. "[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., at 638, 114 A.3d 144. "Judicial review, 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," and therefore requires a broader scope. Id., at 639, 114 A.3d 144. "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, at least to 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 at 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 at 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 at 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. at 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 Higher Education, 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. at 639-40, 114 A.3d 144.

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 prior to 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. at 53, 59, 105 A.3d 148 (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. 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 or ignore 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 alcohol related 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.

ESPINOSA, J., concurring.

In today's decision, this court concludes that an arbitrator's award that effectively precludes an employer from terminating an employee who was abusing drugs on the job does not violate public policy. Because this result is legally required by this court's recent decision in Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 316 Conn. 618, 114 A.3d 144 (2015) (Burr Road ), the principle of stare decisis compels me-reluctantly-to concur in the judgment reversing the trial court's denial of the application filed by the named defendant, Connecticut Employees Union Independent, to confirm the arbitrator's award to reinstate the grievant, Gregory Linhoff. I write separately to emphasize that, although Burr Road made significant progress in synthesizing and clarifying our jurisprudence in this area of the law, it is my belief that-as the plainly outrageous outcome in the present case demonstrates-we should consider modifying the analysis set forth in Burr Road in order to provide for a more flexible approach when reviewing whether an arbitration award contravenes public policy. In particular, I believe that our analysis should afford a more prominent role to the message that an award sends to the public at large concerning the public policies at issue. As the present case has provided this court with the opportunity to apply the Burr Road factors to a new factual scenario, I am now convinced that the net effect of our decision in Burr Road is to take the already narrow confines of our review of arbitration awards that are claimed to violate public policy and further narrow it to the point where this court will simply rubber stamp those awards without any meaningful review on our part.

I begin with a review of our decision in Burr Road and how we used that decision as a vehicle to clarify our case law in this area. In Burr Road, we considered whether an arbitrator's award reducing the penalty received by the grievant, a certified nursing assistant, from termination of employment to a one month unpaid suspension for failing to promptly report suspected patient abuse, violated the state's public policy in favor of protecting vulnerable persons residing in nursing homes. Id., at 620, 114 A.3d 144. The particulars of the grievant's case in Burr Road were less egregious than the facts of the present case. After overhearing a conversation between two coworkers, the grievant became suspicious that a patient may have been physically mistreated by a staff member at the nursing home where the grievant was employed. Id., at 622-23, 114 A.3d 144. The grievant did not officially report the suspected abuse, however, until several days later when she had the opportunity to speak with the patient who confirmed the grievant's suspicions that a staff member had behaved in a "rough" manner and had spoken "gruffly" while assisting the patient. Id., at 623, 114 A.3d 144. Following an internal investigation, the grievant was terminated for her failure to timely report the suspected misconduct-a penalty significantly more severe than that received by the employees actually involved in the misconduct. Id., at 624-25, 114 A.3d 144. The grievant contested her termination and an arbitrator ultimately issued an award reinstating the grievant and determining that she had been terminated without just cause. Id., at 627, 114 A.3d 144.

Prior to addressing the substantive claim in Burr Road, however, we took the opportunity to review our prior decisions in which employers had challenged arbitration awards reinstating terminated employees on the basis that the awards violated a clear public policy. Id., at 632, 114 A.3d 144. Of our previous decisions, we noted that our outcomes were evenly split as to whether the award at issue in the case violated public policy and further observed this was "an area of the law in which consensus has proved elusive" due to the numerous concurring and dissenting opinions filed in those previous decisions. Id., at 632-33, 114 A.3d 144 ; see Stratford v. AFSCME, Council 15, Local 407, 315 Conn. 49, 105 A.3d 148 (2014) ; State v. AFSCME, Council 4, Local 391, 309 Conn. 519, 69 A.3d 927 (2013) ; State v. New England Health Care Employees Union, District 1199, AFL-CIO, 271 Conn. 127, 855 A.2d 964 (2004) ; South Windsor v. South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO, 255 Conn. 800, 770 A.2d 14 (2001) ; Groton v. United Steelworkers of America, 254 Conn. 35, 757 A.2d 501 (2000) ; State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 747 A.2d 480 (2000).

In order to quell any uncertainty stemming from these prior decisions, our decision in Burr Road set out 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, supra, 316 Conn. at 633, 114 A.3d 144. We distilled from our prior decisions those factors that we "expressly or implicitly" relied on to determine whether a grievant's termination is necessary to vindicate a particular public policy, namely: "(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." Id., at 634, 114 A.3d 144.

As to each factor, we also articulated the applicable standard of review. For the first factor, we recognized that "[w]hether sources of public policy themselves mandate termination is a question of law subject to plenary review." Id., at 635, 114 A.3d 144 ; State v. AFSCME, Council 4, Local 391, supra, 309 Conn. at 528-29, 69 A.3d 927. In regard to the second factor, we concluded that because it "hinges on general questions of law and policy" it is "subject to plenary judicial review." Burr Road, supra, 316 Conn. at 637, 114 A.3d 144. Under the remaining two factors, however, our review is much more deferential to the arbitrator's findings and determinations. Recognizing that "the factual findings of the arbitrator ... are not subject to judicial review," we clarified that, under the third factor, "[w]e defer ... to the arbitrator's ultimate determination whether termination was a just or appropriate punishment for the conduct at issue." Id., at 638, 114 A.3d 144. We observed, however, that given the importance of public policy claims, "we review de novo the question whether the remedy fashioned by the arbitrator is sufficient to vindicate the public policies at issue." Id., at 639, 114 A.3d 144. Finally, in regard to the fourth factor, we acknowledged that we "must defer to an arbitrator's assessment-whether express or implied-that a particular employee is unlikely to reoffend if reinstated." Id., at 640, 114 A.3d 144.

We next proceeded to resolve the claim raised by the defendant union on the grievant's behalf under the clarified factors. Id., at 640-41, 114 A.3d 144. After first determining that the first two factors were neutral; id., at 644, 645, 114 A.3d 144 ; we concluded that under the third factor, the grievant's delay in reporting suspected patient abuse was not so egregious that public policy required her termination. Id., at 648-49, 114 A.3d 144. Specifically, we noted that the arbitrator determined that the grievant's conduct-failing to report the suspected abuse through the proper channels-was markedly less egregious than the actions of the other employees involved in the incident, namely, misconduct toward a patient. Id., at 646, 114 A.3d 144. Relying on and in deference to the arbitrator's factual findings, we concluded that the grievant's conduct "was devoid of insidious motives" and, as in previous cases in which we had upheld such awards, "there was no evidence of intent to harm the [patient], the magnitude of the harm was minimal, and the conduct itself was not criminal in nature." Id., at 646-47, 114 A.3d 144. We concluded that the finding of the arbitrator that the grievant was unlikely to reoffend resolved the fourth factor. Id., at 649, 114 A.3d 144. In sum, we concluded that confirmation of the award did not run counter to public policy and we reversed the judgment of the Appellate Court ordering the trial court to grant the application to vacate the award. Id., at 621, 651, 114 A.3d 144.

In the time that has elapsed between our decision in Burr Road and today's decision, courts have applied the analysis and factors that we articulated in Burr Road in at least two other cases. See Bridgeport Board of Education v. NAGE, Local RI-200, 160 Conn.App. 482, 125 A.3d 658 (2015) ; East Hartford v. East Hartford Police Officers' Assn., Superior Court, judicial district of Hartford, Docket No. CV-14-6055713-S, 2016 WL 1265957 (March 2, 2016) (61 Conn. L. Rptr. 863 ). Although I recognize that the four cases in which the Burr Road factors have been applied provide only a limited sample size, I observe that in three of those cases-Burr Road, East Hartford Police Officers' Assn., and the present case-the court upheld the contested arbitration award, whereas in only one case-Bridgeport Board of Education -did the court vacate an arbitration award. These decisions illustrate that the Burr Road factors have produced certain unintended effects and are in need of modification in order to prevent future judicial review of arbitration awards challenged on public policy grounds from becoming a rubber stamp process in which the reviewing court is required to gloss over the arbitration award without conducting any meaningful inquiry. As this court has previously observed, "[e]xperience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better." (Internal quotation marks omitted.) Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 17-18, 448 A.2d 190 (1982) ; State v. Dabkowski, 199 Conn. 193, 199, 506 A.2d 118 (1986) ("[t]he flexibility and capacity of the common law is its genius for growth and adaptation").

The arbitration award at issue in East Hartford Police Officers' Assn. reinstated a police officer who had been terminated after it was discovered that he had improperly accessed an investigative database in order to obtain personal information about a former girlfriend and other individuals. East Hartford v. East Hartford Police Officers' Assn., supra, 61 Conn. L. Rptr. at 863. In reviewing the arbitration award, the trial court first recognized that the award did indeed implicate a public policy, namely the public trust placed in the police given their ability to access confidential information. Id., at 864. After reciting the four factors in Burr Road, the trial court concluded that the award implicated public safety and public trust but that the public policy did "not mandate termination." Id. The court then concluded that under the third factor, the "offense was egregious," but that the arbitrator did not find the grievant to be incorrigible. Id. Accordingly, the trial court denied the plaintiff's motion to vacate the award. Id.

The second case, Bridgeport Board of Education, although far more demonstrative of the application of the Burr Road factors, involved such extreme facts that the factors inarguably weighed against the award. The grievant, a custodian employed by the Bridgeport public school system, was terminated after sending several packets of handwritten and printed materials related to recent mass school shootings to various members of the Bridgeport city government and school system. Bridgeport Board of Education v. NAGE, Local RI-200, supra, 160 Conn.App. at 485, 125 A.3d 658. The handwritten notes from the grievant indicated that he was prepared to carry out a similar atrocity unless his grievances with a supervisor were addressed. Id., at 485-86, 125 A.3d 658. A panel of arbitrators determined that the grievant's actions were a "cry for help" and issued an award reinstating the grievant. (Internal quotation marks omitted.) Id., at 488, 125 A.3d 658.

The Appellate Court reversed the trial court's judgment denying the plaintiff's application to vacate the arbitration award. Id., at 505-506, 125 A.3d 658. The Appellate Court first recognized that the case implicated "well established public policies prohibiting workplace violence, threatening and harassment, and promoting safe settings for Connecticut public schools." Id., at 491, 125 A.3d 658. Under the first factor, the Appellate Court concluded that "[t]he answer to this question weighs heavily in favor of vacating the arbitration award" given the "intolerable"

nature of the grievant's acts. Id., at 496-97, 125 A.3d 658. In regard to the second factor, the Appellate Court explicitly disavowed the union's argument that because the grievant was only a custodian his position did not implicate the public trust or safety by concluding that his conduct put students and the public at risk. Id., at 497-98, 125 A.3d 658. Under the third factor, the Appellate Court disagreed with the arbitration panel's determination that the grievant's conduct was a "cry for help," and noted that excusing the grievant's conduct due to his personal stress would send an unacceptable message that such impermissible conduct would be tolerated if motivated by stress or poor judgment. (Internal quotation marks omitted.) Id., at 502, 125 A.3d 658. Under the fourth factor, the arbitration panel had concluded that the grievant was not likely to repeat his offensive conduct, but the Appellate Court, however, concluded that there was a high likelihood of recidivism, given that the grievant had been subject to prior discipline in his current position and that any penalty short of termination would not serve to deter future similar conduct. Id., at 505, 125 A.3d 658. As all of the Burr Road factors weighed in favor of vacating the arbitration award, the Appellate Court reversed the judgment of the trial court. Id., at 505-506, 125 A.3d 658.

The only other case in which a court has extensively applied the Burr Road factors is, of course, the present case. In doing so, the majority first concludes that there is indeed an "explicit, well-defined and dominant public policy against the possession and recreational use of marijuana in the workplace." See 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).

Under the first factor, the majority concludes that because the state's personnel regulations allow for discipline, up to and including termination, in regard to the grievant's offense of smoking and possessing marijuana at work, that public policy would not be offended by the imposition of a penalty of less than termination. Under the second factor, whether the nature of the employment implicates public trust and safety, the majority concludes that the factor weighs against vacating the arbitration award. The grievant is a state employee who works as a skilled maintainer at the University of Connecticut Health Center (health center), a state-run medical facility, performing buildings and equipment maintenance, grounds work, and skilled trades tasks. In his position, the grievant had keys and access to the entirety of the health center campus as well as a state vehicle in order to traverse the property. The majority concludes, however, that the grievant's position is "not the kind of general public oriented, 'safety sensitive' [position] typically associated with a public policy mandate that absolutely bars reinstatement following an instance of drug use."

In its treatment of the third factor, the relative egregiousness of the misconduct, the majority determines that the factor "essentially is neutral," despite its recognition that "the misconduct at issue was completely unacceptable...." Although the majority notes that the grievant's acts were significant and fell squarely within the public policy against drug use in the workplace, it also recognizes that the grievant's actions did not result in any actual harm to other persons or property, and that the arbitrator determined that the grievant had a positive prior work record and that the consequences of the grievant's actions had a "sobering impact" on him. In concluding that the third factor is neutral in the present case, the majority relies in part on several federal arbitration cases that resulted in a grievant's reinstatement being upheld even though the drug related conduct in those cases was more egregious that the grievant's actions in the present case. Under the fourth factor, the majority simply defers, as Burr Road mandates, to the arbitrator's finding that the grievant deserved a second chance and that his penalty, including an unpaid suspension, was sufficient to deter any future temptation to use illicit drugs in the workplace.

Prior to articulating the ways in which I believe this court should modify its decision in Burr Road, I acknowledge from the outset that 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." (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 391, supra, 309 Conn. at 526, 69 A.3d 927 ; see also State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. at 473, 747 A.2d 480 ("[w]e have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld" [internal quotation marks omitted] ). As arbitration awards that are challenged as violative of a public policy are one of the few areas in which a reviewing court will eschew its profound deference to an arbitrator's decision and conduct a more meaningful review, I propose modifying Burr Road not to disturb the traditional deference we afford to arbitration awards, but to ensure that the difference between the deference we grant to arbitration awards generally and the deference that we apply in reviewing awards that implicate public policy is not blurred to the point of nonexistence.

In my review of the cases applying the Burr Road factors, I have identified two emerging trends that I believe should be addressed and rectified before they can continue to grow and inject confusion and error into the application of the factors by reviewing courts. First, I believe that, because the factors set forth in Burr Road are ultimately too rigid, arbitrators will craft their awards pursuant to Burr Road in a manner to ensure that, under the applicable standard of review, reviewing courts will have no option but to uphold the awards even in extreme and outrageous cases, such as the present one. This will allow arbitrators to self-insulate their awards from meaningful review in order to ensure that their awards are sustained on appeal. Second, given the broad and numerous subfactors in the third Burr Road factor, the net outcome under the third factor will almost always be neutral, as in the present case, unless the facts of the case indicate an extreme level of egregiousness. The near mathematical process of balancing the outcomes of the various sub-factors, either in favor of vacating or confirming an award, increases the probability of their canceling each other out and producing an indeterminate outcome under the third factor itself. This has the net outcome of reducing the overall flexibility of our analysis. Furthermore, I believe that some of the subfactors under the third factor should be more fully fleshed out and prominent in a reviewing court's analysis, as they were in some of our decisions prior to Burr Road.

In regard to the first trend I have identified, stemming from the rigidity of the Burr Road factors, I observe that one of the benefits of our decision in Burr Road is that it clearly laid out the information that would be helpful to aid reviewing courts in their analysis as to whether a particular award violates public policy. The danger, however, is that by imposing a rigid framework under which we will review such claims, arbitrators now have a set of blueprints by which they may construct their arbitration awards to ensure that they will include the features that ensure such awards are upheld on appeal or only undergo cursory review. Indeed, in Burr Road we explicitly encouraged such a result, perhaps unintentionally, when we observed that the clarified factors would also serve as a guide for "the types of factual findings an arbitrator may make in order to assist a reviewing court in considering such a challenge."

Burr Road, supra, 316 Conn. at 633, 114 A.3d 144. Because we also articulated the appropriate level of deference that a reviewing court should grant to particular findings, arbitrators may now craft their findings in a way to make certain that they have the final say on certain aspects of an arbitration award. This is most evident under the fourth factor, which asks whether a grievant is incorrigible. We noted that a reviewing court should defer to an arbitrator's "express or implied" finding as to whether a particular grievant is at risk of repeating the offense if reinstated. Id., at 640, 114 A.3d 144. Although we also outlined the process by which a reviewing court would analyze that factor in the absence of an explicit finding, such a scenario will almost never arise again in the wake of Burr Road. Rather, our decision serves as a clarion call for arbitrators to always make an explicit finding on recidivism, for if they do, that finding will automatically be deferred to and upheld on appeal.

I note that this risk has not yet fully germinated. Of the judicial decisions applying the Burr Road factors, all of them involved review of an arbitration award that was issued prior to our decision in Burr Road. I believe, however, that going forward, reviewing courts will increasingly encounter arbitration awards issued as a mirror image of the Burr Road factors and, accordingly, reviewing courts will be required to defer absolutely to these awards and uphold their validity without conducting any meaningful review. In my opinion, such an outcome empowers arbitrators beyond their traditional role, particularly in cases such as the present where the arbitrator was just one person-not a panel-and our deference to that one person's determinations is greater than that we would accord to a trial court. This outcome effectively eliminates the role of the courts by erasing the distinction between the vast deference we apply to all arbitration awards and the qualified deference we apply when a party claims that an award violates public policy. See Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992) ; Groton v. United Steelworkers of America, supra, 254 Conn. at 44-45, 757 A.2d 501.

In regard to the second trend I have identified-the virtually inevitable result that the third factor will be neutral-I believe that the current subfactors of the third factor of Burr Road should be given a more prominent place in the analysis conducted by a reviewing court. When evaluating the relative egregiousness of a grievant's conduct, the third factor currently directs reviewing courts to consider a myriad of subfactors, "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." Burr Road, supra, 316 Conn. at 638, 114 A.3d 144.

In applying these subfactors in the present case, the majority concludes that the outcome under the third factor is ultimately neutral. Although the facts and arbitration award clearly demonstrate that the grievant purposely brought marijuana to work with the intention of smoking it during his work shift and then proceeded to actually do so, the arbitrator also found that the competing policy goals of progressive discipline and rehabilitation were implicated in the grievant's case and that the reduced penalties imposed on him in his reinstatement pursuant to the award would dissuade the grievant or his colleagues from using drugs in the workplace going forward. Thus, the outcomes under the subfactors of the third factor fall in such vastly different directions that the overall analysis under the third factor is essentially written out of the Burr Road analysis.

This result, which I believe will arise in the majority of cases, has the effect of weakening public policy review as a whole. Indeed, only in those cases that fall outside the bounds of even the extreme outer fringe of public policy claims and are plainly outrageous and societally unacceptable will the third factor prove to be of any determinative import. A prime example of this is Bridgeport Board of Education, in which the subfactors clearly weighed in favor of vacating the award given the manifest absurdity of reinstating the grievant after he seriously threatened to carry out a mass school shooting. Bridgeport Board of Education v. NAGE, Local RI-200, supra, 160 Conn.App. at 502-503, 125 A.3d 658. Otherwise, given the breadth of the inquiry under the third factor, most cases-such as the present-will yield a mixed bag of answers resulting in a neutral and unhelpful result.

In order to give some of the subfactors a more prominent place in our analysis and allow for greater flexibility in the analysis overall given the wide diversity of factual scenarios in the cases in this area of law, I suggest that we should modify Burr Road in order to highlight the importance of certain subfactors that would allow the third factor itself to be more determinative. I place particular emphasis on the fourth subfactor, "whether reinstating the grievant would send an unacceptable message to the public or to other employees regarding the conduct in question"; Burr Road, supra, 316 Conn. at 638, 114 A.3d 144 ; as the public perception of a public policy underlies the strength of the policy itself. For example, in the present case, upholding the arbitration award sends the concurrent message that an employee will retain his job even if he is caught in the deliberate act of using drugs while on the clock. Indeed, the result in the present case also sends a message to the public at large that will only reinforce the common, albeit unfounded, negative stereotype of state employees as occupying cushy jobs that tolerate workplace conduct that would be fatal in the private sector. This outcome will likely raise the ire of citizens who will perceive their tax money as being used to fund the paychecks of employees who spend their time at work getting high and will decrease public confidence in the professionalism and integrity of state employees. To be sure, it may even have a demoralizing effect on those state employees who conduct themselves responsibly and take pride in their work and who may resent being viewed under a cloud of public opprobrium. And, most unfortunately, it will send a signal to less than scrupulous employees who will perceive that-under the reasoning of today's decision-they can kick back and light up a joint during their down time at work with the knowledge that, if apprehended, they will be subject only to some discipline, albeit harsh, but will not actually be fired.

I note that prior to Burr Road this subfactor was somewhat more prominent in our treatment of public policy claims. In AFSCME, Council 4, Local 387, AFL-CIO, the arbitration award at issue reinstated a state correctional officer who was terminated after he used a workplace telephone to place a racist and profane call to a state senator's office. State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. at 468-69, 747 A.2d 480. In crafting the award, the arbitrator excused the correctional officer's conduct as " 'the outgrowth of various personal stressors....' " Id., at 477, 747 A.2d 480. The trial court vacated the award and this court upheld that decision, noting that to do otherwise would "send the message that stress, or poor judgment, or other factors, somehow renders the conduct permissible or excusable." (Internal quotation marks omitted.) Id. Likewise, in United Steelworkers of America, the plaintiff challenged an arbitration award reinstating a municipal employee who had been fired after he was convicted of embezzling his employer's funds. Groton v. United Steelworkers of America, supra, 254 Conn. at 36, 757 A.2d 501. In concluding that the trial court properly vacated the award, this court noted that by doing so "the public who are required to deal with [the town's] employees will feel that they are being served in an honest and trustworthy manner." Id., at 49, 757 A.2d 501 ; see also Bridgeport Board of Education v. NAGE, RI-200, supra, 160 Conn.App. at 502, 125 A.3d 658 (recognizing that to uphold arbitration award would send message to public and other employees that threat "to commit random shootings in an educational setting is permissible or excusable").

Accordingly, I suggest that the subfactors should be incorporated into our Burr Road matrix not as subsets of the third factor, but as factors in their own right. Although this would diminish the neat and contained quadripartite analysis under the current incarnation of Burr Road, I believe that it would allow for a more flexible approach for reviewing courts. Such an approach would prevent our current analysis from growing narrower than it was in our inquiries prior to Burr Road. As our decision in Burr Road created no new law, but only catalogued and recalibrated our existing jurisprudence in this area, our present authority and the scope of our inquiry should not be significantly different from our previous decisions. First, such an approach would recognize that not every factor will always be relevant in every case, given the sheer diversity of the facts in cases that engender public policy challenges to arbitration awards. Thus, to prevent the possible neutral outcome of a factor from skewing the Burr Road analysis one way or the other, drawing out the subfactors will provide for a more holistic approach that fairly weighs all relevant considerations in regard to a particular arbitration award. Furthermore, allowing for a more flexible approach will work to prevent the other emerging trend I have identified where arbitrators will mirror their awards after the structure of Burr Road and include all of the necessary sound bites to ensure that their awards are deferred to and upheld on appeal without any serious review by a court. Additionally, our inquiry could be made even more flexible by reserving the ability to place greater emphasis on some subfactors over others depending on which are implicated by the particular facts of a case.

In conclusion, I predict that as future cases arise-particularly those in which courts are required to review arbitration awards issued after Burr Road -the need to modify the factors we apply will become increasingly evident. Although a general deference to the determinations of arbitrations facilitates and encourages the private dispute resolution system, curtailing the role of the court system in reviewing one narrow category of arbitration awards that implicate important public policies will sow public skepticism of the arbitration process and the role of the court system in reviewing the outcomes of private dispute resolution. Indeed, the outcome in today's decision will assuredly accomplish just that. This court should take the opportunity to temper these trends now before they become increasingly prominent and require much more serious and laborious modifications in the future. Accordingly, I concur in the judgment. 
      
      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.
     
      
      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.
     
      
      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.
     
      
      The health center's rules of conduct prohibit in relevant part "[u]nlawfully ... possessing, using or being under the influence of ... drugs or controlled substances when on the job or subject to duty...."
     
      
      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."
     
      
      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.
     
      
      The trial court rejected additional challenges that the plaintiff had raised to the arbitrator's award.
     
      
      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., at 200, 947 A.2d 916 ("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").
     
      
      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.
     
      
      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."
     
      
      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...."
     
      
      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. at 632-33, 114 A.3d 144.
     
      
      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.
     
      
      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).
     
      
      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. at 637, 114 A.3d 144.
     
      
      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, 339 Ill.Dec. 397, 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 (1986) (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) (reinstatement 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).
     
      
      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 Well-Being 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).
     
      
      At least three other cases from this same time period raised public policy claims, but the courts reviewing the arbitration awards in those cases were not required to apply the Burr Road factors because they concluded that the public policy at issue was either nonexistent or not implicated by the facts of the case. See Ippolito v. Olympic Construction, LLC, 163 Conn.App. 440, 451-54, 136 A.3d 653 (2016) (concluding that enforcement of contract against homeowners did not implicate any well-defined state public policy); Ledyard Police Union, Council 15, AFSCME, AFL-CIO v. Ledyard, Superior Court, judicial district of New London, Docket No. CV-14-6022135S, 2015 WL 6557896 (October 6, 2015) (concluding that union's alleged public policy could not be explicitly or implicitly inferred from General Statutes); Garbarino v. Raymond James Financial Services, Inc., Superior Court, judicial district of Danbury, Docket No. CV-14-6016430-S, 2015 WL 4726738 (June 29, 2015) (recognizing state's well-defined public policy in favor of protecting statements made in quasi-judicial proceedings but concluding facts did not implicate public policy).
     
      
      This court released its decision in Burr Road on May 5, 2015. The arbitration award in East Hartford Police Officers' Assn. was issued on November 10, 2014. East Hartford v. East Hartford Police Officers' Assn., supra, 61 Conn. L. Rptr. at 863. The arbitration panel in Bridgeport Board of Education issued its award on January 9, 2013. Bridgeport Board of Education v. NAGE, Local RI-200, supra, 160 Conn.App. at 487, 125 A.3d 658. Naturally, the arbitration award at issue in Burr Road preceded the decision in that case and, in the present case, the arbitrator issued his award on January 25, 2014.
     
      
      Through sheer coincidence, the grievant's case reaches this court at the same time that the state's fiscal situation has required the layoff of numerous state employees. That these employees have lost their positions through no fault of their own while the grievant will retain his position after openly smoking marijuana on the job certainly sends a mixed and troubling message, both to the public and to those employees who were terminated from state service.
     