CONTRACTUAL ARBITRATION PROCEEDINGS AMERICAN ARBITRATION ASSOCIATION IN THE MATTER OF ARBITRATION BETWEEN ) ) ) ) CITY OF CINCINNATI ) DIVISION OF POLICE ) ) ) DECISION IN: - AND ) ) 56-HOUR SUSPENSION & ) SUSPENSION OF FRATERNAL ORDER OF POLICE ) POLICE POWERS QUEEN CITY LODGE NO. 69 ) (OFFICER DENNIS BARNETTE) ______________________________________________________________________________ AAA CASE NO.: 01-19-0001-8761 GRIEVANCE: The Grievance challenges the 56-Hour Suspension; and, Suspension of Police Powers as lacking “Just Cause”. AWARD: The Grievance is Sustained in part; and, Denied in part. HEARING: September 10, 2019; Cincinnati, Ohio ARBITRATOR: David W. Stanton, Esq. ______________________________________________________________________________ APPEARANCES FOR THE CITY William C. Hicks, Senior Assistant City Solicitor Aaron R. Jones, Captain Germaine Love, Sergeant Anthony Hill, Police Officer Robert Pope, Police Officer FOR THE FOP Kimberly A. Rutowski, Attorney Wesley Brown, Attorney Daniel J. Hils, FOP President Dennis Barnette, Grievant William Nastold, Sr., Police Officer John Leindecker, Detective Terrance Dobbins, Police Officer Regina Adams, Police Officer Brent Adams, Sergeant ADMINISTRATION By email correspondence dated June 28, 2019 from the Somerset, New Jersey Office of the American Arbitration Association, the Undersigned was notified of his mutual selection to serve as Impartial Arbitrator to hear and decide Grievance No. 17-2019, Officer Dennis Barnette’s 56-hour Suspension Grievance then in dispute between these Parties. On September 10, 2019, at the Administrative Offices of the City of Cincinnati, Two Centennial Plaza, 805 Central Avenue, 2nd Floor, Room A, Cincinnati, Ohio, a transcribed Arbitration Hearing was conducted wherein each Party was afforded a fair and adequate opportunity to present testimonial and/or documentary evidence supportive of positions advanced; and, where, the Grievant appeared and testified in his own behalf. The Evidentiary Record of this Proceeding was subsequently closed upon the Arbitrator's receipt of each Party’s Post-Hearing Brief filed in accordance with the arrangements agreed to at the conclusion of the presentation of evidence and subsequently modified per agreement between the Parties. Accordingly, this matter is now ready for final and binding disposition herein. DEMAND FOR ARBITRATION Joint Exhibit 2 represents the “Demand for Arbitration” - a Form utilized by the American Arbitration Association to initiate Arbitration - which sets forth the appeal to Arbitration in accordance with the negotiated Grievance Procedure, as set forth in the Collective Bargaining Agreement between the Parties, as follows: AMERICAN ARBITRATION ASSOCIATION LABOR ARBITRATION RULES DEMAND FOR ARBITRATION Date: June 17, 2019 Name of Filing Party: Fraternal Order of Police, Queen City Lodge No. 69, Union ***** 1 The filing Party, a Party to a Collective Bargaining Agreement dated May 22, 2016, which provides for Arbitration under the Labor Arbitration Rules of the American Arbitration Association, hereby demands Arbitration. Nature of Grievance: Suspension Describe: On or about June 10, 2019, Officer Dennis Barnette received a 56 hour suspension, without Just Cause. Grievance No.: 17-2019 ***** Remedy Sought: Remove suspension and make Grievant whole for lost wages and benefits. ***** Name of Grievant(s) (if applicable): Police Officer Dennis Barnette Name of Respondent: City of Cincinnati, Employer ***** Name of Respondent’s Representative (if known): William C. Hicks, Esq. ***** The stipulated issue for disposition herein is framed as follows: Was the 56-hour Suspension of Police Officer Dennis Barnette for “Just Cause”; and if not, what is the appropriate remedy? CITED PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT The following provisions of the Collective Bargaining Agreement, Joint Exhibit-1, were cited and/or are deemed relevant herein as follows: ARTICLE II MANAGEMENT RIGHTS 2 The FOP recognizes that, except as provided in this Labor Agreement, the City of Cincinnati maintains the following Management Rights as set forth in Ohio Revised Code Section 4117.08(C)1-9: ***** 5. To suspend, discipline, demote or discharge for just cause, or layoff, transfer, assign, schedule, promote, or retain Employees: ***** ARTICLE III GRIEVANCE PROCEDURE ***** Section 3. Steps ***** Step Six ***** ARBITRATION: If the Grievant is not satisfied with the decision or adjustment at Step Five, an Arbitrator, acceptable to both Parties, shall be appointed. The American Arbitration Association (AAA) shall be contacted by the Union, in writing, to obtain a list of Arbitrators within ten (10) calendar days after the receipt of the decision or adjustment of City Management, or his representative, with a copy to the Police Chief and appropriate Deputy or Assistant City Manager. The Parties shall move to select an Arbitrator within twenty (20) calendar days of the date AAA transmits the list of Arbitrators. AAA rules shall apply to all Arbitration Proceedings, including the selection of Arbitrators. The decision of the Arbitrator shall be binding. The cost of the Arbitrator shall be borne equally by the Parties. The Union and the City shall each share the filing fees, administrative fees, or panel fees charged by the AAA. The City, however, shall pay all such administrative fees, filing fees, or panel fees in the event a terminated Employee selects this Grievance and Arbitration Procedure in lieu of his/her rights to proceed under the Civil Service Laws for cases involving employment terminations. The expense of the expert witnesses shall be paid by the Party producing same; and, in the event there is a transcript of proceedings, the Party ordering the transcript shall be responsible for the cost of said transcript. The Arbitrator shall have no power to render a decision that will add to, subtract from, or alter, change or modify the terms of this Agreement and his/her power shall be limited to the interpretation or application of the expressed terms of this Agreement. ***** 3 Additionally, as set forth in the Internal Investigation Section Report, City Exhibit 1; and, Department Level Hearing Summary, City Exhibit 2, respectively, the Grievant was charged for violating “Manual of Rules and Regulations and Disciplinary Process for the Cincinnati Police Department”, Rule 1.23(C) which states: 1.23(C) Members of the Department shall not express, verbally or in writing any prejudice or offensive comments concerning race, religion, national origin, lifestyle, gender, or similar personal characteristics. ***** Additionally, the Grievant was also charged with violation of “City of Cincinnati Administrative Regulation”, No. 25 which states in pertinent part: Definition of Discriminatory Harassment Examples of discriminatory harassment that will violate this policy and may violate the law include: Oral or written communications that contain offensive, name-calling, jokes, slurs, negative stereotyping, or threats. This includes comments or jokes that are distasteful or targeted at individuals or groups based on age, gender, sexual orientation, Gender expression and identity, marital status, disability, religion, race, color, ethnicity, national origin, Appalachian regional ancestry, veteran status, military status, genetic history, or HIV status. ***** Employee/Non-Employee Discriminatory Harassment An on-duty Employee who subjects a non-Employee (vendor, consultant, sales representative, temporary Employee, etc.) to discriminatory harassment in the workplace is subject to this regulation. ***** FACTUAL BACKGROUND 4 The operative facts which gave rise to the filing of this Grievance, challenging the 56Hour Employment Suspension and Suspension of Police Powers as charged, are, except where otherwise indicated, essentially undisputed. The City of Cincinnati, hereinafter referred to as the “Employer” and/or the “City”, operates a Division of Police to protect and serve the members of the community under which its jurisdiction is defined. It is Party to a Collective Bargaining Agreement (“CBA”) Joint Exhibit-1, with the Fraternal Order of Police, Queen City Lodge 69, hereinafter referred to as the “Union” and/or, the “FOP”, which sets forth the terms and conditions of employment and the rights and obligations of these Parties. As set forth therein, the Employer is contractually afforded the authority to promulgate and implement work rules, regulations, policies and/or procedures, hereinafter referred to as “Standards”, to govern the dayto-day Police operations and to further establish and set forth guidelines and expectations regarding the conduct of its Employees. Moreover, that Collective Bargaining Agreement recognizes that Disciplinary Action for violation of the afore-referenced work rules, regulations, policies and/or procedures, may be effectuated by the Employer; however, such must be for "Just Cause". Finally, the Collective Bargaining Agreement provides if the Union determines a misinterpretation, misapplication or violation of the Agreement has occurred and/or any rights or terms and conditions of employment are adversely affected of any of its Members, it has right to challenge such through the negotiated Grievance Procedure contained therein. As this record demonstrates, this matter involves a 56-hour Employment Suspension and Suspension of Police Powers, of the Grievant, Dennis Barnette, a Marine Corp and Iraq Veteran, and a sixteen (16) year veteran of the Cincinnati Police Department. Following his deployment to Iraq, he was placed in the 95th Cincinnati PD Class. He is alleged to have violated Police Department Rule 1.23 (C) and City Administration Regulation No. 25 concerning an incident 5 that occurred on or about December 23, 2018 for uttering a racial slur while effectuating the restraint, cuffing and forceable arrest of Suspect Ayanna Riley. The Grievant’s primary patrol beat included the Bond Hill and Roselawn Neighborhoods which are predominantly African American where this incident arose. On or about December 23, 2018, at approximately 0330 hours, the Grievant was conducting a directed patrol for parking complaints in the vicinity of the Brownstone Nightclub, a popular, primarily African American Club, located at 7733 Reading Road in Cincinnati, Ohio. As he was performing his duties focusing on parking violations in the vicinity of two (2) Nightclubs in the area - the Brownstone and Brandy's - he heard a woman “screaming” in the Brownstone parking lot and observed Suspects Ayanna Riley and Derrick Freeman engaging in a verbal/physical altercation in the Parking lot. The Suspects were ejected from the Nightclub for similar conduct and the off-duty Officers present escorted them to the parking lot to ensure their departure from the premises. Upon observing the altercation between Riley and Freeman, Officers Anthony Hill and Robert Pope, who were performing off-duty extension of Police Service Details, attempted to separate Riley and Freeman and began conducting their investigation of the incident between them. Officer Hill described Riley as intoxicated, loud, belligerent and cursing; and, the Grievant indicated he "yelled at her to be quiet a couple of times and she wouldn't listen, so I stepped in front of her between all members here trying to get her to focus on me instead of what was going on behind me." Freeman was yelling he wanted to press charges against Riley and the scene became very chaotic. During the Internal Investigation interviews, Sergeant George indicated, "...both Parties were completely disorderly. You can hear them screaming in the parking lot. We are not talking about innocence here. She was out of control. It's not what they 6 are painting a picture of her as some school girl." The evidence of record demonstrates Riley was non-compliant and was not following the verbal commands as given. The Grievant testified he was approximately one (1) to two (2) feet away from her almost "nose to nose". The Grievant again asked Riley to be quiet and, as previously indicated, approached her in an attempt to separate the Suspects. While in close proximity to Riley, she swung her right hand and struck the Grievant in the face. According to the Body Worn Camera (BWC) footage, these instances were captured on the video. Upon being struck by her, the Grievant uttered, "N----- slapped me in the face." Upon effectuating the apprehension of Riley, who was at this point was placed against the hood of the Cruiser, she was placed into custody with the assistance of Officer Pope where he continued to try to calm her down. At that point in time the Grievant took her across the street to his Cruiser with Officer Adrianne Brown. Police Officer Pope took control of Suspect Riley in an attempt to calm her and to calm down the crowd whereupon she was removed from the Grievant's Cruiser and another Officer transported her to jail. Based on a review of the BWC footage, it is apparent that onlookers were in close proximity witnessing the incident and the altercation between the two Suspects. Moreover, it was characterized it was beneficial the matter occurred some distance away from the entrance to the Nightclub as onlookers were becoming agitated as the situation escalated. Suspect Freeman, when asked to accompany an Officer to initiate charges against Riley, changed his subject of charges from Riley to the Grievant based on his utterance of the racial slur. It was characterized that once the slur was uttered, the onlookers and Freeman began to unite against the Grievant as the focus of attention. The Officers there expressed concern over the situation escalating once others learned of the slur uttered by the white Officer. Officer Hill indicated he scanned the 7 parking lot to ascertain whether those concerns may be becoming a reality. Sergeant Germaine Love indicated she was relieved nothing else occurred considering the area is known for drug activity and individuals carrying firearms. The Grievant testified it was odd Freeman began filming him on his cell phone and Freeman requested another Sergeant address him because he did not like dealing with Sergeant George. The record demonstrates Sergeant Kelvin Lynn arrived and approached the scene, identified himself and inquired as to what had occurred. According to the testimony of record, Freeman looked straight at the Grievant, pointed straight at him and said, "he has called her the N-word." The Grievant contends, at that time, he simply was frustrated and angry because he was being accused of something he obviously did not do. That was the posture taken by the Grievant until such time he did in fact review the BWC footage which confirmed he did utter the racial slur. The Grievant was then advised by Sergeant George to return to the District to download his BWC. The BWC video was reviewed by the Grievant with the other Sergeants at the District. Indeed, Riley had struck the Grievant in the face, however, at the time it was not clear whether any of the Officers had heard the Grievant utter the racial slur since the Grievant’s Body Cam was knocked off during the struggle with Riley. Upon reviewing the video, he completed the Incident Report and proceeded home. As the evidence of record demonstrates, Officer Hill is a Community Liaison Officer wherein he attempts to help instill and maintain good working relationships within the community of District 4 where this matter arose. He indicated he was concerned about the impact the slur would have on the community relations, as did Sergeant Love, who had concerns about the impact on the Police Department's legitimacy in that community. Within days of this 8 incident, unfavorable Media reports began to surface, including an incident involving Officer Donte Hill, who had uttered the “N-word” on September 26, 2018, approximately three (3) months prior to the incident in question. Officer Hill's Supervisor indicated in a Memo to Police Chief Isaac the following: On September 26, 2018, District 3 Police Officer Donte Hill (P948) was dispatched to 3097 McHenry Avenue for a family trouble (CPD180926000078). During the radio run, Officer Hill used excessive profane language, fourteen (14) times in an inappropriate way. The way Officer Hill used the profane language was not "Verbal Stunning". Some examples of Officer Hill's language on the radio run are, "that got (sic) damn alcohol out here got you “N-word” (plural) acting stupid, because I'm pissed the fuck off, that's why." The entire incident can be viewed on Officer Hill's body cam (ETS No. 2108-240434). For this incident, Officer Hill received a Written Reprimand. That Reprimand was approved by District Captain Paul Broxterman, Assistant Police Chief Paul Neudigate (PWN) and Police Chief Eliot Isaac (EKI). The Written Reprimand contained a link to the incident in the BWC footage. According to the Record, the City apparently has not relied upon Rule 123 (C) per se, for approximately ten (10) years for violations of this nature; however, the Record includes other instances wherein Police Officers have received Disciplinary Action for similar misconduct and are “coded” – “Penalty Code” 08; “Reason Codes” 1; 2; and, 3; and, 07, “Failure of Good Behavior” and different “Standards” (Rule Violations) were cited, but each involved an Officer’s use of disparaging terms/comments: Officer Donte Hill – Written Reprimand – Rule 106 (B) Violation - two (2) instances within 36 months for using the “N-word” (as referenced above) Officer Kevin Brown – Written Reprimand – Rule 106 (C) Violation - uttered “Fucking dike ass bitch” in reference to a Domestic Violence Victim 9 Officer Andrew Fusselman – Written Reprimand – Rules 106 (A) (B) & (C) Violation stated, “[t]he white cops told you to leave you wouldn’t listen”; “I guess if we were black you would have had some understanding, but you don’t”; references to “stupid” “too ignorant to understand” Officer Matthew Thompson – Written Reprimand – Rule 106 (C) Violation - describing an incident from the prior night during Roll Call and used the terms “fruity” and “girlie man” to describe someone’s actions and demeanor On December 26, 2018, the Grievant worked a detail at Cincinnati Children's Hospital. Internal Investigator, Sergeant Germaine Love arrived at that detail to inform the Grievant of the allegations raised against him and, per direction, suspended his Police powers. According to the record, his Police powers were suspended due to the egregious level of the allegations and the impact such could potentially have on his ability to effectively work in the field once these allegations hit the Media. According to the City, the suspension of Police powers is standard for this type of situation and the Grievant's effectiveness in the field would be limited and there would have been extreme safety concerns the Grievant himself acknowledged. As the record demonstrates, once the actions of the Grievant were reported to his superiors, the matter was then assigned to Sergeant Germaine Love of the Internal Investigation Section whereupon she initiated her Investigation. The record demonstrates Sergeant Love was a Police Academy classmate of the Grievant and had a very good relationship with him. According to the record, she reviewed all relevant materials and interviewed the necessary witnesses. She reached the conclusion the Grievant had violated Rule 1.23 (C) of the Manual of Rules and Regulations and Disciplinary Process of the Cincinnati Police Department which states as follows: 10 Members of the Department shall not express, verbally or in writing, any prejudice or offensive comments concerning race, religion, national origin, lifestyle, gender, or similar personal characteristics. Additionally, she concluded his actions also violated the City of Cincinnati's Administrative Code which states: Examples of discriminatory harassment that will violate this policy and may violate the law include: Oral or written communications that contain offensive name calling, jokes, slurs, negative stereo typing, or threats. This includes comments or jokes that are distasteful or targeted at individuals or groups based on age, gender, sexual orientation, Gender expression and identity, marital status, disability, religion, race, color, ethnicity, national origin, Appalachian regional ancestry, veteran status, military status, genetic history, or HIV status. Following the Internal Investigation, a Pre-Disciplinary Hearing was conducted by Police Captain Aaron R. Jones. Following the completion thereof, the evidence as produced, was reviewed and based on the recommendations by Cincinnati Police Chief, Eliot Isaac, the City of Cincinnati Human Resources Department, the City Law Department and the City Manager's Office, it was determined the Grievant should receive a 56-hour Suspension, additional training and an Intervention Plan for his actions, for violating both the Police Department and City Polices against making offensive comments concerning race and using racial slurs. According to the "Matrix" which sets forth the “Penalty” for various violations of work rules, policies, regulations and/or procedures, the 56-hour Suspension was deemed consistent with the range of five (5) to seven (7) days for this type of discipline/infraction. Following the determination made by the City, the Grievant was served a Notice of Disciplinary Action, Layoff or Displacement (Form 32) whereupon that action was met with the Grievance initiated by the Fraternal Order of Police, Queen City Lodge No. 69 in accordance with Article III of the Collective Bargaining Agreement between the Parties. The Grievance was 11 processed to Step Six, titled “Arbitration”, whereupon an Arbitration Hearing before the Undersigned was held on September 10, 2019 wherein witnesses were examined and crossexamined, and numerous documentary exhibits were provided. Following these events, the Grievant returned to his normal assignment in District 4, the Roselawn and Bond Hill areas which, as previously indicated, are predominately African American Neighborhoods. The record fails to demonstrate the Grievant encountered any issues relative to, or arising from, that which occurred resulting in his Employment Suspension and suspension of his Police powers. When the Parties' efforts to resolve this matter through the course of the negotiated Grievance Procedure proved unsuccessful, the 56-hour Disciplinary Suspension and suspension of Police powers Grievance of Police Officer Dennis Barnette was appealed to Arbitration hereunder. CONTENTIONS OF THE PARTIES CITY CONTENTIONS The City contends the fifty-six (56) hour suspension is indeed appropriate. When the Grievant, while angry and emotional in the midst of a forceable arrest of an African American female outside the Brownstone Nightclub in a predominately diverse neighborhood, he exclaimed "N----- slapped me in the face!" It submits this prohibited statement was made; is unrebutted; and, inexcusable. That word is arguably the most egregious slur in the English language, the worse use a Police Officer, acting on behalf of a governmental entity, in such a situation, could utter and is worthy of a harsh penalty. That statement alone justifies the imposition of the 56-hour Suspension at the very least, let alone when viewed in the context of this situation. The Union's attempt to establish the Grievant is not a racist and is a “good” person is irrelevant since City witnesses, primarily African American Officers, agree the Grievant is not 12 a racist. However, he is not accused of being a racist. He is accused of using an egregious racial slur during a forceable arrest. The Grievant is guilty of Policy violations as relied upon and the discipline exacted is indeed appropriate under the circumstances. Pursuant to Article II of the Collective Bargaining Agreement, the imposition of Disciplinary Action can be imposed by the Employer for “Just Cause”. Based on the testimonial and documentary evidence provided, the City has clearly established it followed time-honored principles of Just Cause for the issuance of discipline in this matter. The City provided the Grievant ample forewarning of the possible disciplinary consequences for his actions. The Cincinnati Police Department Rules and the City of Cincinnati Administrative Code both prohibit Officers from making offensive comments; using racial slurs; and/or, making other comments based on race. Such provide explicit notice violations will result in severe Disciplinary Action as articulated in the “Matrix” utilized by the Police Department that ranges from a penalty of five (5) to seven (7) day Suspensions for violation of Rule 1.23(C) for which the Grievant was charged. It emphasizes some conduct is so clearly wrong and egregious, specific, written prohibitions set forth in Policies and/or Work Rules is simply unnecessary. Common sense alone would dictate the use of the “N-word” is prohibited and severe discipline would be the consequence for its utterance. The Grievant was made aware his behavior was prohibited as set forth in the rules and regulations and the record is replete with evidence the Grievant had adequate knowledge of these rules and the disciplinary consequences for their violation. He testified he knew the word was very negative and no one should use it. The City contends the rule to discipline Employees for actions such as those committed by the Grievant is indeed reasonably related to the efficient operation of the City's Police 13 Department - the primary Law Enforcement Agency for the City of Cincinnati providing a full range of services to approximately fifty-two (52) Neighborhoods. Essential to this mission is the necessity to treat citizens in a professional and non-discriminatory manner and to build and maintain good community relations. In that vein, the City promulgated “standards” prohibiting the use of offensive racial slurs in the workplace particularly based on interactions with citizens which can only be deemed essential for the orderly, efficient and safe operation of Police services. Such are based on reasonable expectations of Police Officers, including the Grievant. Prior to administering the discipline, the City engaged in an effort to discover whether he did in fact violate or disobey the rule stemming from this incident. It performed a comprehensive Investigation, interviewed multiple witnesses, reviewed the surveillance of the Body Worn Camera footage and provided the Grievant many opportunities to respond to the accusations levied against him. He was afforded a Pre-Disciplinary Hearing where he was able to hear the charges and respond to them and was accompanied by Union representation. The City obtained substantial evidence he had committed the act with which he was charged based on the clear and explicit depiction in the BWC footage capturing the Grievant violating the prohibition against the use of offensive racial slurs. The Grievant ultimately admitted to violation of this rule prohibiting such offensive slurs when he reviewed the video and based on the statements of those interviewed by Sergeant Love who performed the Investigation for the Internal Investigations Section. The City has applied its disciplinary rules, orders and penalties evenhandedly to all who have committed violations thereof. While the Grievant presented several alleged comparisons regarding unequal imposition of discipline, these simply represent “red herrings” because they are not similarly situated to the facts and circumstances involving the Grievant. Such are inapt 14 comparisons to this matter justifying different Disciplinary Action. The specific facts and circumstances of those other matters are insufficiently detailed as to make comparing them of little utility. Moreover, to the degree they do have details, there are distinguishing or mitigating factors presented in the Reports that demonstrates they are not analogous to the actions of the Grievant. With respect to Donte Hill, an African American Police Officer did in fact use the “Nword” approximately three (3) months prior to this incident. However, while he was initially given a lower penalty, i.e., a Written Warning, such was ultimately changed to the same 56-hour Suspension based on the fact, as it alleges, such was mis-categorized/coded. Moreover, there is no evidence Hill's situation raised any safety risk for Officers, resulted in any complaints, or any other collateral impact on community relations or departmental cohesion were evident. The Grievant's matter received negative Media attention and would be subject to a Brady/Giglio disclosure. Additionally, Police Officer Kevin Brown was issued a Written Reprimand under Rule 1.06 (C) for his use of a homophobic comment related to a domestic violence victim. Such did not involve the utilization of the “N-word”, the evidence does not demonstrate such was made to the person during an arrest in front of witnesses in public, resulted in complaints and arguably involved a situation that would endanger Officer safety resulting in a Brady/Giglio disclosure, or any other multiple aggravating factors that occurred with the Grievant. With respect to Police Officer, Andrew Fussleman, who received a Written Reprimand for stating "the white cops told you to leave, you wouldn't listen." In that statement, there is no mention of a slur, especially the use of the “N-word”. The facts do not demonstrate whether the comment was made to the person during an arrest in front of witnesses, in public, resulted in 15 complaints, or in a situation that would endanger Officer safety and/or result in a Brady/Giglio disclosure. With respect to Police Officer Matthew Thompson, who received a Written Reprimand for utilizing the terms "fruity and girly man" when describing an incident the prior night during roll call, again there was no use of the “N-word” and the comment was not made in public, but at the District. The facts do not suggest other similar issues existed as with the Grievant whether it generated complaints or endangered Officer safety or could have resulted in a Brady/Giglio disclosure, or any of the other multiple aggravating factors that existed with the Grievant's matter. These examples of alleged uneven discipline, as alleged by the Union, are lacking in enough detail for them to be appropriate comparisons. The facts of those matters show multiple ways these other incidents are distinguishable from the Grievant's. The Grievant used what is generally considered the most egregious racial slur while arresting a minority in a crowded public setting creating a safety risk for all the Officers present to the detriment of the community and internal Police relations. The City argues the discipline administered was reasonably related to the seriousness of the Grievant's violation of the City’s work rules and/or policies. Arbitrators and Administrative Panels have long recognized the principle they should hesitate to substitute their judgement and discretion for that of Management. Once it is determined an Employee committed the act for which the Employer imposed discipline, the Arbitrator is not to disturb the discipline imposed unless the discipline is arbitrary, capricious, represents an abuse of discretion, or is otherwise unreasonable. In determining the Suspension penalty herein, Captain Jones used the Police Department disciplinary table also referred to as the "Matrix" which suggested a five (5) day 16 forty (40) hour to seven (7) day fifty-six (56) hour Suspension for violation of Rule 1.23(C) for which the Grievant was charged. Based on all circumstances, the Grievant received a seven (7) day Suspension. In his Report, Captain Jones concluded: ...Officer Barnette used arguably the most heinous racial slur in the English language as understood in current American society...he was upset and physically restraining an African American woman when it was uttered. I suggest Officer's Barnette's use (sic) of the word was to demean another citizen because of her race. Officer Barnette will have to deal with the ramifications of his actions for the rest of his career...his credibility as a Police Officer and as a witness will always be called into question, especially in circumstances involving African Americans... …as it stands now, Officer Barnette is a sixteen (16) year veteran of the Department. One single utterance of the slur, without any other pattern or practice of prejudice to point to, should not lead to termination. I believe a second violation should lead to immediate dismissal. The Disciplinary Matrix contained in the Manual of Rules and Regulations and Disciplinary Process for the City Police Department recommends between a 5 to 7-day suspension for a first violation of Rule 1.23(C). The City of Cincinnati's Administrative Regulation No. 25 distinguishes between conduct that creates a hostile work environment (interferes with another person's work performance) and conduct that does not rise to a hostile work environment. It is my belief after watching the BWC footage, that a hostile work environment was created when Officer Barnette uttered the slur. Everyone who heard the slur, both sworn and civilian, immediately ceased their activities at the time and became solely concerned with one issue; Officer Barnette's use of the slur... The City emphasizes the testimony of Union FOP President Dan Hils who testified there is no excuse for utilizing the “N-word”. Additionally, he acknowledged, progressive discipline recognizes a more serious offense can shorten the progressive discipline scheme such that sometimes you get fired for a first offense. President Hils acknowledged another use of the “Nword” would be fatal for the Grievant's career and likely result in termination. As such, consistent with that reasoning, it would hold if a second offense is termination it would be reasonable for a first offense penalty to be more severe than a mere Written Reprimand as suggested by the Union. 17 For these reasons, the City requests the Grievance be denied. FOP CONTENTIONS The Union contends the Employer failed to establish “Just Cause”, as required under Article II, Section 5 of the Collective Bargaining Agreement, when it issued the 56-hour Suspension on June 10, 2019 and further suspended his Police powers. It emphasizes the Ohio Supreme Court has conferred upon the Arbitrator broad remedial powers regarding the review of the appropriateness of discipline imposed. Here, the term “Just Cause” is utilized to justify discipline of Employees; however, such is not defined in the Collective Bargaining Agreement. The Arbitrator is afforded the jurisdiction under Article III, Section 3, to interpret the terms of the Agreement. Therefore, it is within the Arbitrator's express jurisdiction and authority to define “Just Cause” pursuant to the Collective Bargaining Agreement and to review the appropriateness of the discipline as imposed herein. The FOP argues the City did not provide the Grievant forewarning he would be suspended for unintentionally using a racial slur. It references the Officer Donte Hill incident wherein he intentionally utilized the same racial slur constituting his second occurrence within 36 months. Three months thereafter, the Grievant was assaulted and unintentionally utilized the same racial slur for which Officer Donte Hill received a Written Warning. It submits the Grievant did not direct this slur at the suspect or the citizens in close proximity; he is depicted speaking to his fellow Officer(s). In fact, the suspect did not react to the use of that word. Moreover, the Investigation endeavored by the City did not fairly assess whether the Grievant was guilty as charged. He is not a racist as indicated by the various witnesses who provided testimony and is not prejudiced against any members of the community. Many Officers who appeared and testified on behalf of the Grievant: Officer Robert Pope, an eighteen 18 (18) year veteran with the Department; Officer Anthony Hill; Internal Investigations Section Sergeant Love; Officer Terrance Dobbins; Officer William Nastold, retired from the Cincinnati Police Department as a Lieutenant after twenty-nine (29) years of service; Officer John Leindecker, a fifteen (15) year veteran; Officer Regina Adams; Sergeant Brent Adams, who has known the Grievant for fifteen (15) years, all of whom testified about their dealings with the Grievant over the course of his career and theirs, none of which have ever known him to exhibit any signs that would suggest in any way he was a racist, or viewed any member of the community in a derogatory or adverse fashion. Additionally, testimony was provided wherein that word is commonly used in African American Neighborhoods which the Grievant, and many of those who testified, routinely patrol. Officers within the various Districts are exposed to the utilization of that word on a daily basis. Many also characterized that the use of that word is inescapable and used in many different contexts within the various communities. As characterized, friends will use the term as a term of endearment, foes will use it as an opportunity to insight anger in someone else. The Union emphasizes the Grievant has been exposed to this word on a daily basis for the sixteen (16) years of his career. The Grievant claims he did not realize he had uttered this racial slur until he reviewed the BWC footage during the course of the City's Investigation of this incident. He testified he did not intend to use this word or make any type of prejudicial comment about the Suspect. He was slapped in the face and made an excited utterance. Unfortunately, it is viewed as an egregious, racially derogatory slur. The FOP argues the City simply has not evenly applied its rules, orders and/or penalties evenhandedly and without discrimination to all Employees. In support thereof, it cites the Officer Donte Hill incident who was charged with a Rule 106(B) violation and received a 19 Written Reprimand for utilization of the same racial slur. Such represented Officer Hill’s second violation in the last 36 months. Officer Kevin Brown was charged with a Rule 106 (C) violation and received a Written Reprimand for stating, "fucking dyke ass bitch", in reference to a domestic violence victim. Another Officer (Andrew Fusselman) was charged with Rule 106 (A) and Rule 106 (C) violations and received a Written Reprimand for calling a suspect stupid and referring to race. Officer Thompson was charged with a Rule 106 (C) violation and received a Written Reprimand when another Officer complained about his use of the use "fruity" and a "girly man" during Roll Call. The Rule violation for which the Grievant was disciplined is Rule 1.23 (C) which states: "Members of the Department shall not express verbally or in writing any prejudice or offensive comments concerning race, religion, National origin, lifestyle, or similar personal characteristics." The FOP asserts consistency in the issuance of Disciplinary Action is an important component of fairness and Just Cause. Witnesses testified it would not be fair Officer Donte Hill receive a Written Reprimand for the same use of the racial slur when the Grievant received a 56-hour Suspension. Many witnesses emphasized the unprovoked manner in which Officer Hill utilized that word compared to the Grievant who was a victim of an assault while engaging in a forceable arrest. Provocation existed in the Grievant's circumstance, whereas Officer Hill's circumstance did not present the same set of circumstances. One represents an unprovoked situation where the racial slur was spoken directly to someone and the Grievant's situation resulted from a sudden attack. FOP President Sergeant Dan Hils testified, "I think both of these are entry-level offenses...while the FOP President -- it's not in his best interest to go saying when somebody should get a reprimand, but both of these cases, this would have been served well with a reprimand, in my opinion." 20 The FOP submits the degree of the penalty as imposed - 56-hour Suspension and 4month suspension of Police powers - was excessive based on the fact the Grievant had no prior discipline in his record. He is a sixteen (16) year veteran who made a mistake with a slip of the tongue whereas Officer Donte Hill received a Written Reprimand for a second occurrence within 36 months. While Captain Jones offered concerns about the Grievant's ability to continue to work in the community, and suspended his Police powers for a four-month period, in conjunction with the 56-hour Suspension, the record demonstrates the Grievant returned to full duty on April 27, 2019 and experienced no issues in discharging his duties. None of the Grievant’s superiors voiced any concerns about whether the Grievant could perform his duties without incident, or that he would ever utter this slur again. The FOP urges the purpose of discipline is to correct behavior, and in this case, a Written Reprimand would definitely have corrected the conduct. A 56-hour Suspension and a four (4) month suspension of Police powers is simply punitive. Moreover, discipline is to deter others from similar or like behavior. Based on the Media attention in these two matters and the fact both Officers had to file a civil lawsuit against the City to have their Police powers restored, would indeed provide powerful deterrent for future violations. The City has made clear how any future violations will be handled prospectively. As such, it is inherently unfair to enforce a Suspension on one Officer for the same misconduct for which another Officer received a Written Reprimand. The City's suspension of Police powers resulting in the loss of Overtime and other offduty details, is indeed within the purview of the Arbitrator as part of the Just Cause analysis. The Evidence of Record demonstrates the Grievant routinely worked off-duty details and relied upon the income earned therefrom. While the City has taken the position Police powers are 21 strictly at the Chief's discretion and working off-duty details is a privilege, the Union submits the issue of suspending Police powers is indeed appropriate within the adjudication of this dispute. The CBA is silent with respect to assigning such details and leaves that discretion to the Chief; however, the Contract rate is the only language that exists relative to these off-duty details. During the course of the lawsuits filed in Federal Court, challenging the suspension of Police powers, the City acknowledged the Arbitrator may have the ability to address any losses during this disciplinary Suspension regarding the loss and suspension of Police powers. The FOP emphasizes Ohio Supreme Court case, Queen City Lodge No. 69, FOP v. City of Cincinnati, 63 Ohio, St.3d 403(Ohio 1992) wherein the Supreme Court granted Arbitrators broad remedial power. In this matter, it is clear the suspension of Police powers is punitive in nature and restored within hours of the lawsuits being filed. The Grievant routinely worked extra-duty details to gain additional income and did so through the utilization of the Cincinnati Police Department “Coplogic” scheduling system used to post available details each and every month. The Grievant was unable to work any details in February, March, April and May recognizing his Police powers were restored in late April. This prevented him from “signing up” for any extra duty details in May 2019; he, however, began to sign up for those details in June. He lost five (5) details and four (4) Court dates due to his 56-hour Suspension served June 10 through June 20, 2019. Officers are paid $42 per hour for off-duty details and the Grievant routinely worked a Children's Hospital detail for six (6) hours at a time. He provided, in Union Exhibit 3, a calculation of his lost Wages totaling $14, 676. He also had to hire an Attorney with respect to the lawsuit for the restoration of his Police powers. In this regard, the Union submits, in accordance with guidance from the Ohio Supreme Court, the Arbitrator indeed has broad 22 remedial powers to address that which the Grievant lost as a result of being improperly disciplined including the suspension of his Police powers for the time in question. For these reasons, the Union requests the Grievance be sustained; the 56-hour Suspension be reduced to a Written Reprimand consistent with that issued to Officer Donte Hill; and, the Grievant be made whole for the 56 hours of backpay and compensation lost on Overtime and offduty details. DISCUSSION AND FINDINGS The disposition of this matter hinges upon a determination of whether the Employer has established “Just Cause”, as required under the Collective Bargaining Agreement, to effectuate the Disciplinary Suspension of 56 hours, as well as, the suspension of Police powers for the events that occurred on or about December 23, 2018. He was charged with the violation of Manual of Rules and Regulations and Disciplinary Process for the Cincinnati Police Department, Rule 1.23 (C); and, City of Cincinnati Administrative Regulation No. 25, which for adjudicative purposes herein, arise from the same incident and will be addressed based thereon. The Employer asserts the evidence unequivocally indicates the Grievant did indeed utter a racial slur while effectuating a forceable arrest of an African American female outside the Brownstone Nightclub. It submits the evidence of record, especially that as clearly depicted on the Body Worn Camera footage, captured the incident and the Grievant’s conduct for which he received the Disciplinary Action. Given the magnitude of his egregious utterance, as it impacts community relations, Officer safety, as well as, the attention this matter received in various Media outlets, the Employer was well within its contractual and inherent right to effectuate the Disciplinary Action as imposed. 23 The Union contends the evidence of record demonstrates, that while the video footage depicts the Grievant using the racial slur, the Grievant himself was unaware he had in fact made this utterance until he reviewed the camera footage, demonstrating such was an excited utterance and unintentional. Additionally, the manner in which the Grievant received a 56-hour Suspension and suspension of Police powers preventing him from performing extra duty details, Overtime assignments, Court pay, etc., is completely inconsistent with other instances where, especially, this racial slur was uttered, as well as, other similarly egregious terms have been made. The Union emphasizes the discipline imposed upon the Grievant far exceeds the Written Warnings received by others, especially that involving the utilization of this identical racial slur, however, uttered by an African American Police Officer. The Parties’ Collective Bargaining Agreement, under which the Arbitrator's authority is recognized and conferred, sets forth in the Management Rights Article, the Employer's inherent and contractually recognized authority to promulgate, implement and enforce reasonable rules and expectations placed upon Employees of the Division of Police. Indeed, these particular rules, regulations and/or policies are viewed herein as being reasonably related to the legitimate business entity of guiding and directing day-to-day operations of Employees as they interact and interrelate with members of the community which the Police Department serves. There exists no challenge as to the reasonableness of these work rules and/or policies which served as the basis for the imposition of this Disciplinary Action, and as such, shall be deemed reasonable on their face, as well as, in their scope, breadth and application. The challenge, as raised, concerns the consistency in the manner in which the same racial slur was uttered by two (2) Police Officers; each receiving different degrees of Disciplinary Action; and, each being of different races. The evidence of record, particularly that captured in 24 the video footage of the Body Worn Cameras of various of the Officers at this particular scene, is clear and seemingly unadulterated. The “incident” involved two (2) Suspects - male and female in the parking lot of the Brownstone Nightclub who were ejected for fighting inside the Club. Officer Hill was working an off-duty extension of Police Services detail; he and other off-duty Officers, escorted the couple out of the Nightclub and across the parking lot, some distance away from the entrance, to ensure they left the Club's premises and away from any gathering of patrons. Upon obtaining identification from the two Suspects, the incident, which served as the basis for imposition of Disciplinary Action, occurred. The Grievant, who was nearby the scene investigating parking complaints as the record demonstrates, observed the disturbance in the parking lot as the two Suspects continued to escalate that which originated inside the Nightclub. The attempts to de-escalate this matter by removing them from inside the Nightclub into the parking lot spilled over into the parking lot garnering the attention of the Grievant who overheard the loud and belligerent conduct between the Suspects, especially Suspect Riley and the physical altercation that ensued between her and Suspect Freeman. The Grievant proceeded across the street to the parking lot area where the incident escalated. The Grievant, in an attempt to assist the other Officers, stepped between Suspects Riley and Freeman to create distance between them in order to de-escalate the situation. Unfortunately, those endeavors proved unsuccessful as Riley continued to exhibit loud and belligerent behavior compounded by her, and Freeman’s, apparent intoxicated state. In an effort to try to separate the two, the BWC footage clearly and unequivocally indicates Suspect Riley physically assaulted Officer Barnette and upon doing so he uttered "N----- slapped me in the face!" Clearly, the Grievant was assaulted. Clearly, the Grievant uttered the “N-word” after restraining her and initiating handcuffing while other Officers assisted. As characterized in the 25 testimony of record, other Officers at the scene, indicated those present were fortunate this exchange occurred away from the entrance of the Nightclub where fewer patrons were observed. Clearly, the video depiction unequivocally demonstrates the Grievant committed the conduct prohibited by the Policies relied upon by the City in effectuating the Disciplinary Action at issue. “Just Cause”, as required under the CBA, requires the Employer to establish the Grievant is indeed guilty of the wrongdoing which served as the basis for the imposition of Disciplinary Action and the Disciplinary Action imposed is commensurate with the nature of the infraction committed while addressing time-honored components, generally recognized in the Arbitration forum, as such relate to aggravation and/or mitigation. Clearly, based on the BWC footage, two components of this incident are undeniable and inescapable - Suspect Riley physically assaulted Officer Barnette; and, Officer Barnette uttered the afore-referenced racial slur, even if the utterance was provoked by, or resulted from, her assault. Having established the initial component of proof of the wrongdoing prompting the issuance of Disciplinary Action, the question becomes as to whether the discipline as imposed is reasonable under all circumstances as presented. The Grievant's contention he was unaware he had made this utterance until he reviewed the BWC footage arguably suggests that perhaps the escalation of this incident certainly impacted, unfortunately in a profound way, the reaction of the Grievant upon being assaulted. Such does not, in the opinion of the Arbitrator, excuse the utterance of this racial slur as commonly and generally recognized and about which many of the African American witnesses and members of the Cincinnati Division of Police, testified regarding the connotation generally applied to this slur. Such, as characterized, does not carry any endearing qualities and/or connotation. Without question the use of this racial slur is morally wrong, socially insensitive 26 and from a member of a Police Department representing an extension of a Governmental entity, unprofessional and prohibited by workplace rules and regulations promulgated and implemented by the City and acknowledged by the Grievant. The Arbitrator will not attempt to profess to understand the origin or continued existence of such an insensitive expression of hatred or attempt to comprehend the magnitude of feelings of those to, or about, whom such slurs are uttered. Such represents an indictment of those things we strive to be as a civilized and diverse society however lacking in the acceptance of others. The Division of Police is an extension of a Governmental entity charged with the high, professional obligation and responsibility to protect and serve all members of this community and all Neighborhoods comprising it. Rules of conduct are promulgated and implemented to guide day-to-day Employee actions and to set parameters and expectations for job-related conduct as representatives of such a Governmental entity. Gleaned therefrom is the fundamental premise that all citizens within any community be treated with equal dignity and respect regardless of whatever differences they bring to the table, either chosen, or not. Every human being makes choices each and every day regarding the way we act, interact, and/or speak to those we encounter, and all human beings make mistakes in these endeavors; some intentional, some unintentional; and, some profound, hurtful and inexplicable. The role of the Impartial Arbitrator, whose authority is recognized in, and conferred under, this Collective Bargaining Agreement, is to receive, analyze and weigh the evidence provided and render a content/Employee-neutral decision, not based on social expectations and/or societal norms, but to adjudicate a workplace dispute in an Employment setting based on time-honored Labor-Management principles which provide guidance in the resolution of those disputes regardless of personal views or those articulated through public opinion. Indeed, biases 27 exist in a diverse society; however, it is how we address and react to them that hopefully makes us understand how those are affected by them and guide our daily interactions accordingly. Employment work rules and policies - “Standards” - are promulgated and implemented as content-neutral Employee guidelines of how interpersonal interactions "should" occur and exist and, such are intended to be applied consistently and evenhandedly; however, as this matter indicates, and despite endeavors to apply them equally, they are not. The Arbitrator's role is not to dispense his/her moral compass, instill or pontificate his/her social code of conduct upon those who have simply contracted for the adjudication of workplace disputes. As Impartial Arbitrator, my role is to adjudicate this workplace dispute arising under this Collective Bargaining Agreement utilizing time-honored Labor-Management principles as established, recognized and applied in such matters. This case is not about what course of action the Arbitrator may have personally taken; it is about what course of action was taken when two Police Officers of different races, made the same utterance of a prohibited, derogatory term viewed as racially insensitive, for which one received a Written Warning and the other a 56-hour Suspension. Both had their Police powers suspended and ultimately restored after initiating legal action. Based on the time-honored, Labor-Management principle of “Just Cause”, as recognized in the CBA, the imposition of Disciplinary Action must be consistent and evenhandedly administered – like Disciplinary Action for like infractions. Here, an African American Police Officer, who made the same utterance two (2) times within a 36-month period - the second of which occurred just three (3) months prior to the incident at issue herein - at the time, received a Written Warning. Whereas, the Grievant in this matter, of Caucasian decent, uttered the same racially insensitive, derogatory slur for which he received a 56-hour Suspension and suspension 28 of Police powers preventing him from pursuing extra duty details and other compensated opportunities. Clearly, the discipline imposed was inconsistent and not applied to the two (2) “violators” - Employees of the Police Department - evenhandedly. Without question, the video footage of the Body Worn Camera, satisfactorily substantiates the Grievant did indeed engage in the misconduct for which Disciplinary Action is appropriate; however, based on that previously issued to other Officers who have violated this “rule”, especially Officer Donte Hill who uttered the same term two (2) times in a 36-month period, the 56-hour Suspension and suspension of Police powers, is inconsistent with that Disciplinary Action established for violation of this Rule or such Rules, Policies and/or Regulations addressing and prohibiting such utterances. The Ohio Supreme Court has held, in a 1997 Case involving these Parties, “after finding a violation of the Collective Bargaining Agreement, an Arbitrator is presumed to possess implicit remedial power, unless the Agreement contains restrictive language withdrawing a particular remedy from the jurisdiction of the Arbitrator”. (Here, this CBA contains no such restriction on the Arbitrator’s remedial authority to redress that lost by this Employee) When these Parties were unable to resolve the dispute, the matter went to binding Arbitration, pursuant to the terms of the Labor Agreement. That Arbitrator agreed with the FOP's position and sustained the Grievance, finding “the Employer did not have the right to then restrict the Grievant to his home under the language of the Agreement". The Arbitrator concluded his written opinion by stating: "inasmuch as the home restriction cannot be undone, the only reasonable remedy is that proposed by the Union. Therefore, Officer McMillian shall be compensated for the contractual overtime rate of sixteen (16) hours each day between December 18, 1985 and February 24, 1986, that he was required to subject himself to the improper restrictions imposed by the Employer”. Clearly, that Court, absent any contractual restrictions, has conferred upon Arbitrators certain 29 broad remedial authority/jurisdiction to fashion a remedy to redress that which was lost due the Disciplinary Action found to be inconsistently applied herein. Words have meaning and what is said; by whom; and, to whom they are uttered, in many situations, cannot be retracted and unfortunately, may cause some to view the person saying them in a different and/or negative light. Obviously, in this forum, an Arbitrator simply lacks any ability to change one’s view regarding an individual or set of circumstances. The Arbitrator can only redress that which arises under the CBA conferring such authority based on time-honored Labor-Management principles. The disposition of this matter necessarily hinges on the differences in the level of Disciplinary Action which the compelling comparison involves the same racial slur uttered by Officers of different races – wherein one received a Written Warning and the other received a 56hour Suspension. While the Arbitrator understands the “safety” concerns of the City returning the Grievant to his “beat”, the suspension of Police powers, in the opinion of this Arbitrator, amounts to an element/extension of discipline subject to review herein. Under Just Cause principles, as recognized and required in this CBA to effectuate Discipline, such amounts to the “stacking” thereof and is universally deemed an unreasonable exercise of managerial authority to effectuate Disciplinary Action. It is viewed by this Arbitrator as additional Disciplinary Action preventing this particular Employee from engaging in, and receiving, compensated extra-duty details/assignments for the duration of the suspension of Police powers. But for the issuance of the 56-hour Suspension, the Grievant would not have had his Police powers suspended, thus denying him these extra-duty opportunities which are necessarily subject to redress herein. While this Arbitrator is indeed mindful of the profound impact this Opinion and Award may ultimately have, the adjudication of this dispute, arising under this Collective Bargaining Agreement recognizing and requiring Just Cause, involves the consistent application of the 30 Department Rules and Regulations under which two Officers, regardless of race, received starkly different penalties. Based on the totality of this evidence, the imposition of the 56-hour Suspension is viewed as inconsistent with the Written Warning received by another Officer, regardless of race, who received such just three months prior to this incident. Moreover, other incidents cited demonstrate lower levels of Disciplinary Action - Written Warnings (additional Training) - have been issued for similar violations of such “Standards” prohibiting such utterances of other terms deemed equally derogatory and/or offensive. The Employer set this Disciplinary Action precedent with respect to violation of these particular work rules, procedures and/or policies, prohibiting such utterances; and, determined for other Officers who have violated these Standards, a Written Warning was appropriate discipline. Such was deemed appropriate Discipline for Officer Hill at that time until such received adverse attention in the Media prompting the change to “mirror” that of the Grievant; the “miscoding” argument notwithstanding. This matter must be gauged and analyzed based on that conduct which occurred at the time Disciplinary Action was issued and not that taken after the fact when Officer Hill's Disciplinary Action was subsequently increased to reflect the same type of Disciplinary Action imposed against the Grievant. While that matter is not properly before this Arbitrator, the issuance of the Written Warning for the utterance of the same racial slur indeed must, and does, serve as compelling guidance with respect to the manner in which Disciplinary Action for this particular violation was established and effectuated; as was the case for other Officers who have violated this Standard when similar derogatory and/or offensive comments were uttered. Disciplinary Action for this violation, regarding this Employee was inconsistently determined and not applied evenhandedly for the same misconduct as other Employees found to have 31 violated this Standard. As previously indicated, work rules, policies and/or procedures are drafted and implemented as Employee-neutral guidance for day-to-day workplace conduct and must be applied on a consistent basis to all Employees as Members/Employees of the Division of Police for the City of Cincinnati. Based thereon, Disciplinary Action was appropriate and warranted for the reasonably prohibited misconduct engaged in by the Grievant, as captured on the BWC footage; however, the Grievance is Sustained to the extent the 56-hour Suspension shall be reduced to a Written Warning, consistent with that issued to Officer Donte Hill for the same offense, and to other Employees who have made similar derogatory and offensive utterances; the Grievant shall be made whole for the time lost from the 56-hour Suspension; and, he shall be made whole for the extra employment opportunities lost when his Police powers were suspended. (Each Charge Rule 25; and, Rule 1.23(C) - levied against this Employee, while recognized as separate Charges, are merged only for the purpose of disposition/adjudication herein since each is dependent on the other). The Arbitrator shall retain jurisdiction for a period of sixty (60) calendar days from the date of issuance of this Opinion and Award to assist the Parties with any implementation issues that arise. AWARD The Grievance is Sustained in part; and Denied in part. David W. Stanton David W. Stanton, Esq. NAA Arbitrator December 9, 2019 Cincinnati, Ohio 32