State v. Connecticut Employees Union Independent

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STATE OF CONNECTICUT v. CONNECTICUT
EMPLOYEES UNION INDEPENDENT ET AL.
(SC 19590)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.*
Argued March 31—officially released August 30, 2016
Barbara J. Collins, for the appellant (named
defendant).
Gregory T. D’Auria, solicitor general, with whom
were Thomas P. Clifford III, assistant attorney general,
and, on the brief, George C. Jepsen, attorney general,
and Philip M. Schulz, assistant attorney general, for
the appellee (plaintiff).
Opinion
ROGERS, C. J. This case presents the question of
whether the public policy of Connecticut demands no
less than termination of employment as the only appro-
priate disciplinary response when a state employee is
caught smoking marijuana during his working hours.
The defendant,1 Connecticut Employees Union Inde-
pendent, appeals2 from the judgment of the trial court
rendered following the court’s denial of the defendant’s
motion to confirm an arbitration award that reinstated
Gregory Linhoff, a union member (grievant), to his
employment at the University of Connecticut Health
Center (health center). The court denied the defen-
dant’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 num-
ber 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 rele-
vant to this appeal. At the time of the incident in ques-
tion, 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 main-
tainer’’3 at the health center, he was caught smoking
marijuana.
Specifically, at about 5:50 p.m., a health center police
officer observed the grievant and a coworker sitting in
a state van parked in a secluded area 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, smok-
ing from a glass pipe. When the officer asked the griev-
ant 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 cen-
ter’s rules of conduct,4 alcohol abuse and drug-free
workplace policy,5 and smoke-free workplace policy,
and that the incident was considered to be serious.
Wallace noted further the unsupervised nature of the
grievant’s position and the fact that he had access to
all areas of the health center, and she opined that the
grievant no longer could be trusted to perform his duties
in an acceptable manner.
The defendant contested the grievant’s termination
and, on December 19, 2013, pursuant to a grievance
procedure provision in the parties’ collective bargaining
agreement, an arbitration hearing was held to determine
the issues of whether: (1) the dismissal of the grievant
was for just cause; and (2) if not, what should be the
remedy, consistent with the agreement. Wallace testi-
fied 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 griev-
ant’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 per-
son 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 discov-
ered 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, follow-
ing 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 appoint-
ment 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 mari-
juana 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 tes-
timony, 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 employ-
ment 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 vio-
lations 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 compo-
nent of just cause that provides a path to rehabilitation
under appropriate circumstances, the arbitrator con-
cluded that termination was unwarranted. In short, the
arbitrator rejected the plaintiff’s contention that com-
plete termination of the grievant’s employment was the
only appropriate penalty for his misconduct.
The arbitrator, nevertheless, imposed a significant
penalty for the grievant’s substantial misconduct. The
grievant was suspended for a period of six months,
without pay, to run from the effective date of his earlier
removal from the payroll.6 The arbitrator ordered addi-
tionally that the grievant, upon his return to work, be
subject to random drug and alcohol testing for a one
year period, at the plaintiff’s discretion, and that the
grievant ‘‘should consider his return to work to be in
a ‘last chance’ context so that any future violation of
the [plaintiff’s] policies that were applicable in [the
arbitration] proceeding would warrant his immediate
dismissal.’’
Thereafter, the plaintiff filed an application to vacate
the arbitrator’s award, and the defendant filed a cross
application to confirm that award. See General Statutes
§§ 52-417 and 52-418. In its application to vacate, the
plaintiff contended, inter alia, that the arbitrator’s
award violated public policy due to the serious nature
of the grievant’s misconduct. The defendant disputed
that contention. In an October 6, 2014 memorandum of
decision, the trial court agreed that there was a well-
defined public policy against the use of marijuana and,
furthermore, that the arbitrator’s award violated that
policy. Specifically, the court reasoned, the grievant
purposefully had used marijuana at work, raising safety
and security concerns, and to reinstate him under those
circumstances would send an improper message that
personal stress somehow excused his misconduct.7 The
court granted the plaintiff’s application to vacate the
award and denied the defendant’s application to con-
firm the award. This appeal followed.
We begin with the well established standard of
review. ‘‘Because we favor arbitration as a means of
settling private disputes, we undertake judicial review
of arbitration awards in a manner designed to minimize
interference with an efficient and economical system
of alternative dispute resolution. . . . Furthermore, in
applying this general rule of deference to an arbitrator’s
award, [e]very reasonable presumption and intendment
will be made in favor of the [arbitral] award and of the
arbitrators’ acts and proceedings.’’ (Citation omitted;
internal quotation marks omitted.) State v. New
England Health Care Employees Union, District 1199,
AFL-CIO, 271 Conn. 127, 134, 855 A.2d 964 (2004).
We have recognized, however, that an arbitration
award should be vacated when, inter alia, it violates
clear public policy. Id. When a challenge to a consensual
arbitration award ‘‘raises a legitimate and colorable
claim of violation of public policy, the question of
whether the award violates public policy requires de
novo judicial review.’’8 (Internal quotation marks omit-
ted.) Id., 135.
‘‘The public policy exception applies only when the
award is clearly illegal or clearly violative of a strong
public policy. . . . A challenge that an award is in con-
travention of public policy is premised on the fact that
the parties cannot expect an arbitration award approv-
ing 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 author-
ity 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 [col-
lective bargaining agreements] is limited to situations
where the contract as interpreted would violate some
explicit public policy that is well defined and dominant,
and is to be ascertained by reference to the laws and
legal precedents and not from general considerations of
supposed public interests.’’ (Citations omitted; internal
quotation marks omitted.) Id., 135–36.
‘‘The party challenging the award bears the burden
of proving that illegality or conflict with public policy
is clearly demonstrated.’’ (Internal quotation marks
omitted.) Id., 136. ‘‘[G]iven the narrow scope of the
public policy limitation on arbitral authority,’’ the trial
court’s order vacating the arbitrator’s award should be
upheld only if the plaintiff ‘‘demonstrates that the . . .
award clearly violate[d] an established public policy
mandate.’’ (Internal quotation marks omitted.) Id. As
we repeatedly have emphasized, ‘‘implicit in the strin-
gent and narrow confines of this exception to the rule
of deference to arbitrators’ determinations, is the notion
that the exception must not be interpreted so broadly
as to swallow the rule.’’9 (Internal quotation marks omit-
ted.) 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 sus-
pension, with various conditions, violates public policy.
This court employs a two-pronged analysis to determine
whether an arbitration award should be vacated for
violating public policy. ‘‘First, the court determines
whether an explicit, well-defined and dominant public
policy can be identified. If so, the court then decides
if the arbitrator’s award violated the public policy.’’
(Internal quotation marks omitted.) Id., 137.
Looking to our statutory, regulatory and decisional
law, we conclude that there exists an explicit, well-
defined and dominant public policy against the posses-
sion 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 unau-
thorized 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, manda-
tory referral to a drug education program at the offend-
er’s expense. See General Statutes § 21a-279a.10
Possession of larger amounts of marijuana by an unau-
thorized person exposes that person to more significant
fines, potential imprisonment and, for more than four
ounces or a second offense, a felony conviction. See
General Statutes § 21a-279.11 Additionally, pursuant to
the regulations of the Department of Administrative
Services, the use of illegal drugs while on duty is a type
of misconduct for which a classified state employee
may be reprimanded, suspended or dismissed. See
Regs., Conn. State Agencies § 5-240-1a (c). Finally, the
Appellate Court, in an appeal raising the same general
issue as the present appeal, previously has held that
Connecticut ‘‘has a well-defined public policy against
the use of marijuana.’’ Enfield v. AFSCME, Council 4,
Local 1029, 100 Conn. App. 470, 476, 918 A.2d 934, cert.
denied, 282 Conn. 924, 925 A.2d 1105 (2007). In light of
the foregoing authorities, we conclude that the statu-
tory, 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 determina-
tion, 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 termina-
tion of [the grievant’s] employment’’ will suffice given
the public policy at issue. (Internal quotation marks
omitted.) Id., 59.
We recently issued a comprehensive opinion ‘‘to clar-
ify 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 consid-
ering 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 employ-
ment at issue implicates public safety or the public
trust; (3) the relative egregiousness of the grievant’s
conduct; and (4) whether the grievant is incorrigible.’’12
Id., 634.
‘‘The first [Burr Road] factor requires us to consider
whether the relevant statutes, regulations, and other
manifestations of the public policy at issue themselves
recommend or require termination of employment as
the sole acceptable remedy for a violation thereof. . . .
Put differently, we ask whether the offense committed
by the employee involves the sort of conduct the law
deems to be inexpiable, or that would expose the
employer to substantial liability if it were to reoccur.
. . . Whether sources of public policy themselves man-
date termination is a question of law subject to plenary
review.’’ (Citations omitted.) Id., 634–35.
The regulations governing state employment are most
pertinent here. As we previously have stated, the use
of illegal drugs in the workplace explicitly is identified
as misconduct warranting discipline. See Regs., Conn.
State Agencies § 5-240-1a (c) (10). Notably, however,
the regulations do not require the dismissal of an
employee for such misconduct. Although that sanction
is available; see id., § 5-240-5a (a); the employer also is
authorized to respond with a lesser sanction such as
a reprimand; see id., § 5-240-2a; or a suspension with
reduced or no pay. See id., § 5-240-3a (a) and (b). The
state’s drug-free workplace policy mirrors the regula-
tions, providing that ‘‘[a]ny employee violating this pol-
icy [by unlawfully possessing or using a controlled
substance in the workplace] will be subject to disci-
pline, up to and including termination.’’13 (Emphasis
added.) The policy also notes ‘‘Connecticut’s existing
three-pronged strategy of education, treatment and
enforcement to combat substance abuse,’’ and encour-
ages employees with substance abuse problems to par-
ticipate in an employee assistance program or a
rehabilitation program.
The state’s drug-free workplace policy explicitly ref-
erences 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 termi-
nation; 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 appro-
priate 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 sus-
pension, following his arrest in the workplace for pos-
session 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 Employ-
ees International Union, District 1199, 116 F.3d 41,
46 (2d Cir. 1997). Thus, the federal act, like the state
policy that draws from it, does not require termination
for drug related misconduct in the workplace, but
rather, allows for the options of a lesser sanction or a
rehabilitative approach.14
In sum, the relevant sources of public policy do not
support the conclusion that such policy is offended by
discipline short of termination for a state employee’s
use of marijuana in the workplace. Rather, they provide
for an array of responses and explicitly support efforts
at rehabilitation, thereby rejecting the notion that the
perpetrator of the misconduct necessarily is incapable
of atonement.
The second Burr Road factor ‘‘is whether the nature
of the employment at issue implicates public safety or
the public trust. . . . Nationally, in the vast majority
of cases in which courts have vacated for public policy
reasons arbitration awards reinstating terminated
employees, the grievant has been a public sector
employee,15 primarily working in fields such as law
enforcement, education, transportation, and health
care, in other words, fields that cater to vulnerable
populations or help ensure the public safety. . . . This
reflects the fact that the threat to public policy involved
in reinstating a terminated employee is magnified when
the offending employee provides an essential public
service, and especially when he is employed by, repre-
sents, and, ultimately, is answerable to the people.’’
(Citations omitted; footnote added.) Burr Road
Operating Co. II, LLC v. New England Health Care
Employees Union, District 1199, supra, 316 Conn. 635–
36. The second Burr Road factor ‘‘hinges on general
questions of law and policy and is, therefore, subject
to plenary judicial review.’’ Id., 637.
Pertinent to this factor, the plaintiff had argued
before the arbitrator that the grievant, due to his mis-
conduct, no longer could be trusted to perform his
unsupervised responsibilities as a skilled maintainer,
such as changing heating, ventilation and air condition-
ing 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 sub-
stantially 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 mari-
juana 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. Airline Pilots Assn. International, 861
F.2d 665, 674–75 (11th Cir. 1988) (affirming vacatur
of award reinstating pilot who had flown commercial
aircraft while intoxicated, thereby ‘‘endanger[ing] the
lives of his passengers and crew’’), cert. denied, 493
U.S. 871, 110 S. Ct. 201, 107 L. Ed. 2d 154 (1989); Amal-
gamated 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). More-
over, although hospital patients are a vulnerable popula-
tion, there is no finding by the arbitrator, or even any
allegation by the plaintiff, that the grievant’s mainte-
nance duties involved contact with patients or the medi-
cal equipment used in their diagnoses or treatment.
Similarly, the plaintiff has not argued, nor did the arbi-
trator find, that the grievant’s ability to access the cam-
pus 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 pos-
session of marijuana and cocaine with intent to sell),
cert. denied, 255 Conn. 905, 762 A.2d 910 (2000); Cleve-
land Board of Education v. International Brotherhood
of Firemen & Oilers Local 701, 120 Ohio App. 3d 63,
75–76, 696 N.E.2d 658 (1997) (affirming vacatur, on
public policy grounds, of award reinstating school bus
mechanic who tested positive for cocaine use).16
The arbitrator explicitly found that the nature of the
grievant’s misconduct was not of such a nature that his
return to work would endanger persons or property.
When referencing the grievant’s job duties in connec-
tion 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 Admin-
istrative 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 typ-
ically associated with a public policy mandate that abso-
lutely 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 vio-
late 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 indus-
trial and medical gas supplier who were caught smoking
marijuana and inhaling nitrous oxide on company prop-
erty 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] dif-
ference 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. Amal-
gamated Transit Union, Local 627, Docket No. C-
930423, 1994 WL 525543, *5 (Ohio App. September 28,
1994); see also Super Tire Engineering Co. v. Team-
sters 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 ‘egre-
giousness’ of the grievant’s offense. . . . This factor
encompasses myriad considerations, including, but not
limited to: (1) the severity of the harms imposed and
risks created by the grievant’s conduct; (2) whether
that conduct strikes at the core or falls on the periphery
of the relevant public policy; (3) the intent of the griev-
ant with respect to the offending conduct and the public
policy at issue; (4) whether reinstating the grievant
would send an unacceptable message to the public or
to other employees regarding the conduct in question;
(5) the potential impact of the grievant’s conduct on
customers/clients and other nonparties to the employ-
ment 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 circum-
stances, 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 ter-
mination was a just or appropriate punishment for the
conduct at issue.’’ (Citations omitted.) Burr Road
Operating Co. II, LLC v. New England Health Care
Employees Union, District 1199, supra, 316 Conn. 637–
38. ‘‘[F]or purposes of the public policy analysis, [how-
ever] our determination of whether the conduct in
question was so egregious that any punishment short
of termination would offend public policy is not
restricted to those findings,’’ because they may be case
specific. Id., 638. ‘‘Judicial review, by contrast, necessar-
ily 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., 639. ‘‘Accordingly, we
review de novo the question whether the remedy fash-
ioned 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 arbitra-
tor 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 termina-
tion 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 deci-
sions that we have cited herein have upheld the rein-
statement of employees following drug or alcohol
related misconduct, even though that misconduct was
purposeful, occurred in the workplace and, in some
instances, was substantially more egregious than that
of the grievant. See, e.g., First National Supermarkets,
Inc. v. Retail, Wholesale & Chain Store Food Employees
Union Local 338, supra, 118 F.3d 893–94 (supermarket
manager reported to work under influence of alcohol
and prescription drugs, could not perform his duties,
behaved ‘‘in manner unbecoming a manager,’’ shouted
profanities, procrastinated, had trouble opening safe,
at one point ‘‘blacked out,’’ then drove car on sidewalk
and displayed gun to coworker [internal quotation
marks omitted]); Saint Mary Home, Inc. v. Service
Employees International Union, District 1199, supra,
116 F.3d 42 (grievant possessed three quarters of one
ounce of marijuana and drug paraphernalia while work-
ing 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 mari-
juana and inhaled nitrous oxide on company property);
Super Tire Engineering Co. v. Teamsters Local Union
No. 676, supra, 721 F.2d 122 (spot repairer at tire com-
pany consumed alcoholic beverages at nearby inn dur-
ing work breaks); Premium Building Products Co. v.
United Steelworkers of America, supra, 616 F. Supp.
513 (worker at manufacturing facility was observed
smoking marijuana in tool and dye room and denied
doing so even after testing of confiscated substance
proved offense); Lansing Community College v. Lan-
sing 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 mari-
juana 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 par-
ticular employee will reengage in the offending con-
duct? . . . 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 pro-
fessional 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 addi-
tional 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 likeli-
hood of recidivism is plain from the face of the record.’’
(Citations omitted.) Burr Road Operating Co. II, LLC v.
New England Health Care Employees Union, District
1199, supra, 316 Conn. 639–40.
As to this factor, in arriving at the award ordering
reinstatement, the arbitrator observed that the grievant
had been employed by the plaintiff for fifteen years,
with no prior disciplinary incidents, and had received
favorable performance evaluations. The arbitrator also
considered that the grievant had sought therapy for
anxiety and depression 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 ran-
dom 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 dis-
missal.
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. More-
over, the discipline the arbitrator imposed was appro-
priately severe, and sends a message to others who
might consider committing similar misconduct that
painful consequences will result. The award provides
a disincentive for the grievant to reoffend, and it makes
clear that, should he be foolish enough to do so, he will
be seeking new employment. See Stratford v. AFSCME,
Council 15, Local 407, supra, 315 Conn. 53, 59 (rein-
statement 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 condi-
tions including rehabilitation program, unannounced
drug testing and last chance provision; terms of award
‘‘were reasonable in that they imposed punishment and
provided safeguards to prevent recidivism’’). Given the
serious discipline imposed by the arbitrator’s award, we
disagree with the plaintiff’s contention that the award
communicates to other state employees that there are
no consequences for engaging in misconduct similar to
the grievant’s.17 See Eastern Associated Coal Corp. v.
United Mine Workers of America, District 17, 531 U.S.
57, 60–61, 65, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000)
(award reinstating truck driver who twice tested posi-
tive for marijuana, after unpaid suspension and with
conditions of participation in substance abuse program,
continued random drug testing and last chance provi-
sion, 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 alco-
hol related violations are at issue. Our general deference
to an experienced arbitrator’s determinations regarding
just cause and the appropriate remedy is vital to pre-
serve 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 arbi-
trator’s purview, it remains free to negotiate for the
inclusion of an appropriate provision in the collective
bargaining agreement that would achieve that result.
The judgment is reversed and the case is remanded
to the trial court with direction to grant the defendant’s
motion to confirm the arbitration award reinstating the
grievant’s employment and to deny the plaintiff’s
motion to vacate that arbitration award.
In this opinion PALMER, ZARELLA, EVELEIGH,
McDONALD and ROBINSON, Js., concurred.
* This appeal was originally scheduled to be argued before a panel of
this court consisting of Chief Justice Rogers and Justices Palmer, Zarella,
Eveleigh, McDonald, Espinosa and Robinson. Although Justice Eveleigh was
not present at oral argument, he read the briefs and appendices, and listened
to a recording of the oral argument prior to participating in this decision.
1
Gregory Linhoff, the grievant in the underlying proceedings, also was
named as a defendant in the trial court. For purposes of convenience, we
refer herein to Connecticut Employees Union Independent as the defendant
and to Linhoff as the grievant.
2
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
3
The state Department of Administrative Services class specification for
a skilled maintainer, which was part of the record before the arbitrator,
indicates generally that a person employed in that position may perform
tasks in the areas of building and equipment maintenance, grounds care,
or trades work. The grievant’s specific job duties are not clear from the
record, and the arbitrator made no findings in that regard.
4
The health center’s rules of conduct prohibit in relevant part ‘‘[u]nlawfully
. . . possessing, using or being under the influence of . . . drugs or con-
trolled substances when on the job or subject to duty . . . .’’
5
The health center’s alcohol abuse and drug-free workplace policy pro-
vides in relevant part that ‘‘the unlawful possession, use or distribution of
illicit drugs and/or alcohol will not be tolerated.’’
6
Because more than six months already had passed, the arbitrator further
ordered the grievant to be returned to work immediately and made whole
for all back pay accruing after the conclusion of the suspension period, less
any income earned or unemployment compensation received, and subject
to the usual and customary payroll deductions.
7
The trial court rejected additional challenges that the plaintiff had raised
to the arbitrator’s award.
8
We emphasize, however, that our de novo review is limited to the question
of whether the arbitrator’s decision to suspend the grievant as opposed to
terminating his employment is itself contrary to an established public policy.
In a case involving an unrestricted submission, when we conduct de novo
review in response to a claim of a public policy violation, we do not review
either the arbitrator’s construction of the agreement, to determine whether
that construction is correct, or the arbitrator’s factual findings, to determine
whether those findings have sufficient evidentiary support. See HH East
Parcel, LLC v. Handy & Harman, Inc., 287 Conn. 189, 199, 947 A.2d 916
(2008) (‘‘[w]e . . . do not substitute our own reading of the contract terms
for that of the arbitrator, but intervene only to the extent that those terms, as
interpreted, violate a clearly established public policy [emphasis in original;
internal quotation marks omitted]); id., 200 (‘‘a reviewing court is bound by
the arbitrator’s factual findings in reviewing a claim that an award rendered
in a consensual arbitration violates this state’s public policy’’).
9
The public policy exception to the general rule of extreme deference to
arbitral awards is intended to be an ‘‘exceedingly narrow’’ one. Schoonmaker
v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 438, 747
A.2d 1017 (2000). By advocating for changes to our recent, well considered
arbitration jurisprudence that would render the exception more broadly
applicable, the concurring justice fails to fully appreciate that its very limited
scope is entirely purposeful, and for good reason, namely, to preserve the
efficacy of an efficient and economical private dispute resolution mechanism
for which the parties freely have bargained. In short, we do not share the
concurrence’s view that the slim chances of reversal under the public policy
exception are evidence of an improper, unintended consequence of our
existing standards of review.
10
General Statutes § 21a-279a provides in relevant part: ‘‘(a) Any person
who possesses or has under his control less than one-half ounce of a canna-
bis-type substance . . . shall (1) for a first offense, be fined one hundred
fifty dollars, and (2) for a subsequent offense, be fined not less than two
hundred dollars or more than five hundred dollars.
‘‘(b) The law enforcement officer issuing a complaint for a violation of
subsection (a) of this section shall seize the cannabis-type substance and
cause such substance to be destroyed as contraband in accordance with law.
‘‘(c) Any person who, at separate times, has twice entered a plea of nolo
contendere to, or been found guilty after trial of, a violation of subsection
(a) of this section shall, upon a subsequent plea of nolo contendere to, or
finding of guilty of, a violation of said subsection, be referred for participation
in a drug education program at such person’s own expense.’’
11
General Statutes § 21a-279 provides in relevant part: ‘‘(b) Any person
who possesses or has under his control . . . four ounces or more of a
cannabis-type substance . . . for a first offense, shall be guilty of a class
D felony, and for a subsequent offense shall be guilty of a class C felony.
‘‘(c) Any person . . . who possesses or has under his control one-half
ounce or more but less than four ounces of a cannabis-type substance . . .
(1) for a first offense, may be fined not more than one thousand dollars or
be imprisoned not more than one year, or be both fined and imprisoned;
and (2) for a subsequent offense, shall be guilty of a class D felony. . . .’’
12
Although the arbitrator’s decision in the present matter was issued prior
to our decision in Burr Road Operating Co. II, LLC, it touches upon many,
but not all, of the factors and subfactors identified in that decision, as
hereinafter discussed. We note that, to the extent the arbitrator failed to
make factual findings pertinent to the analysis in that case, we are not free
to supplement the record with factual findings of our own. See footnote 8
of this opinion. Consequently, our discussion of the Burr Road factors, in
places, necessarily will be limited.
The trial court, when deciding the parties’ motions to vacate or confirm,
similarly did not have the benefit of our decision in Burr Road Operating
Co. II, LLC, and, therefore, understandably did not apply the framework
established by that decision. Notably, we intended in Burr Road Operating
Co. II, LLC, to bring clarity to an existing body of jurisprudence that was
confusing and, to some degree, internally inconsistent. See Burr Road
Operating Co. II, LLC v. New England Health Care Employees Union,
District 1199, supra, 316 Conn. 632–33.
13
Similarly, the health center’s rules of conduct permit ‘‘disciplinary action
up to and including dismissal’’; (emphasis added); for an employee’s use
or possession of drugs or controlled substances when on the job. Its alcohol
abuse and drug-free workplace policy also permits ‘‘disciplinary action up to
and including termination’’; (emphasis added); for an employee’s unlawful
possession or use of illicit drugs.
14
In the present case, as we previously have mentioned, the charges
against the grievant ultimately were dismissed. As to employees, like the
grievant, who engage in workplace drug use that does not result in a convic-
tion, the federal act does not prescribe any sanction at all. See generally
41 U.S.C. § 8103 (a) (1) (F).
15
Similarly, ‘‘[i]n Connecticut, in every case wherein this court has con-
cluded that an arbitration award reinstating a terminated employee offended
public policy, the grievant was a state or municipal employee.’’ Burr Road
Operating Co. II, LLC v. New England Health Care Employees Union,
District 1199, supra, 316 Conn. 637.
16
Notably, even in cases involving drug or alcohol use by employees in
safety sensitive positions, or by employees who interact with vulnerable
populations, courts do not invariably hold that awards reinstating their
employment violate public policy. Rather, in many instances, after consider-
ing the applicable sources of public policy and all of the surrounding facts
and circumstances, they conclude that lesser sanctions are an acceptable
form of discipline. See, e.g., Doe v. Central Arkansas Transit, 50 Ark. App.
132, 135–36, 138–39, 900 S.W.2d 582 (1995) (reinstatement of public bus
driver who tested positive for cocaine did not violate public policy); Dept.
of Central Management Services v. Ndoca, 399 Ill. App. 3d 308, 309, 312–13,
926 N.E.2d 872 (2010) (reinstatement of bridge mechanic who tested positive
for marijuana did not violate public policy); Amalgamated Transit Union,
Division 1300 v. Mass Transit Administration, 305 Md. 380, 390, 504 A.2d
1132 (1985) (reinstatement of bus driver who drove bus with odor of alcohol
on breath did not violate public policy); Lansing Community College v.
Lansing Community College Chapter of the Michigan Assn. for Higher
Education, 161 Mich. App. 321, 323–24, 328, 409 N.W.2d 823 (1987) (reinstate-
ment of community college professor who smoked marijuana with students
during class time did not violate public policy), reaffirmed after remand,
171 Mich. App. 172, 429 N.W.2d 619 (1988), appeal denied, 432 Mich. 882
(1989); Shenendehowa Central School District Board of Education v. Civil
Service Employees Assn., Local 1000, AFSCME, AFL-CIO, Local 864, 20
N.Y.3d 1026, 1027–28, 984 N.E.2d 923, 960 N.Y.S.2d 725 (2013) (reinstatement
of school bus driver who tested positive for marijuana did not violate public
policy); Washington County Police Officers’ Assn. v. Washington County,
335 Or. 198, 200–201, 63 P.3d 1167 (2003) (reinstatement of deputy sheriff
who transported prisoners, following positive drug test and admitted daily
drug usage, did not violate public policy).
17
Minimizing the significance of a six month unpaid suspension and ques-
tioning 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).