DC Arbitrator: Fire Chief Guilty of Retaliation

WASHINGTON, DC &#8211 D.C. Fire Chief Kenneth Ellerbe unlawfully retaliated against the president of the city firefighters union by transferring him from his work assignment and seeking to manufacture a justification for the move, an arbitrator has ruled.

In a 29-page written decision dated Oct. 19, arbitrator Leonard Wagman said Edward Smith, president of the International Association of Firefighters Local 36, was moved from his post at Rescue Squad 1 to Engine 7 last year after publicly criticizing policy decisions made by Chief Ellerbe. The department claimed that Capt. Smith’s reassignment was consistent with a 12-year-old order that called for regular transfers so that personnel could gain experience in a variety of specialties.

But the arbitrator rejected the department’s explanation of the transfer, saying Capt. Smith was acting within his rights when he spoke out.

“I find that the real reason was to retaliate against Captain Smith for engaging in union activity as president of Local 36, the exclusive collective-bargaining representative of the Department’s employees,” Mr. Wagman said in the decision.

Mr. Wagman, with the Federal Mediation and Conciliation Service, concluded that the department should reinstate Capt. Smith to his prior position at Rescue Squad 1.

Capt. Smith, who said he was pleased by the ruling, said he has not been ordered back to Rescue Squad 1 and that the department has 20 days to appeal the decision to the Public Employee Relations Board.

“It’s not about me, it’s about the union as an organization and our protective rights,” he said.

Chief Ellerbe did not return a phone message seeking comment or respond to emailed questions sent last week about the decision.

The transfer in question occurred in July 2011 after Capt. Smith talked with reporters about several ongoing department issues – including a change to the department’s logo, policies involving leave for pregnant firefighters and inadequate conditions in emergency vehicles.

The ruling cites one instance in which Chief Ellerbe confronted Capt. Smith after a department-related ceremony and discussed recent press coverage of the pregnancy policy. Chief Ellerbe said he was “displeased” with the coverage and that Capt. Smith would “have to pay for it.”

“After a brief conversation about making choices in life, Chief Ellerbe and Captain Smith parted,” the ruling states. “Smith understood the chief was threatening retaliation.”

Mr. Wagman said in a footnote that Chief Ellerbe admitted he “may have” expressed displeasure with Capt. Smith but could not recall what he said.

Ten days after the confrontation, the arbitrator noted, Chief Ellerbe issued the order transferring Capt. Smith from the post he held for five years.

“The record convincingly shows the required animus and timing leading up to this transfer,” Mr. Wagman wrote.

After his reassignment, Capt. Smith sought an explanation for the move under provisions of the department’s collective bargaining agreement with the union but got conflicting answers.

The department’s initial responses were “evasive, amounting to a statement that ‘we did it because we can,'” the arbitrator said.

Only after the union sought further explanation, the department responded with a letter stating that Capt. Smith was transferred under an old special order – issued by Chief Ellerbe when he led the department on an interim basis in 2000 – that said personnel could be transferred after three years to any position in order to gain experience in various skills and work environments. In contrast, the arbitrator noted that the order essentially had “faded from view” and that a department official testified that it did not appear to be an active order that employees would be expected to know.

But in what might be the arbitrator’s most damning conclusion, Mr. Wagman states that Chief Ellerbe attempted to manufacture a reason for Capt. Smith’s transfer.

“In his efforts to come up with a lawful explanation for his decision to transfer Captain Smith, Chief Ellerbe hastened to Smith’s firehouse on Sunday, July 3, in the midst of the Independence Day weekend, to search for some flaw in the Captain’s performance of duty,” the arbitrator wrote.

Chief Ellerbe ordered Capt. Smith to write a report on Rescue Squad 1’s response to a recent incident onN Street, and in a meeting with union leaders offered the incident as one of the reasons for the transfer. However, the arbitrator noted that the incident was never brought up in later hearings and Chief Ellerbe conceded that the “report presented no ground for punishing Captain Smith.”

While the ruling in Capt. Smith’s case illustrates the most clear-cut charge of retaliation by the fire chief that has been upheld, other firefighters have made similar complaints about retaliatory behavior.

In July, Lt. Robert Alvarado was demoted to the rank of sergeant and suspended from work without pay for 264 hours on the order of a trial board after he was brought up on charges for giving an interview with a TV station – in which he spoke out about issues involving firefighter uniforms. Since returning from his suspension, Sgt. Alvarado has been detailed to the department’s training academy and filed an appeal of the trial board decision with the Office of Employee Appeals. In a letter submitted to the D.C. attorney general this month, Sgt. Alvarado’s attorney alleges that the fire chief’s pattern of harassment has continued there.

Former Battalion Chief Richard Sterne was demoted to the rank of captain in April after he handed down lesser punishment than what Chief Ellerbe deemed necessary to two firefighters accused of allowing beer in a U Street firehouse. He chose to reprimand rather than suspend the men involved in the incident. Since being demoted and sent to work in a firehouse in Northwest, he filed an appeal of the decision with the District’s Office of Employee Appeals.

Kevin Sloan, another battalion fire chief who ruled on the appropriate punishment for another firefighter tied to the beer case, also was transferred in what he called an act of “workplace bullying.” Facing family hardship over his new work schedule, he retired from the department this month.

In May, the American Civil Liberties Union of the Nation’s Capital cited the spate of demotions in criticizing Chief Ellerbe and questioned whether fire department employees could expect to receive due process in disciplinary hearings.

In 2000, during a brief stint as interim chief of the department, Chief Ellerbe was similarly criticized for ordering punitive transfers. Some two dozen D.C. firefighters were reassigned involuntarily as purported punishment and retaliation, prompting a letter from the ACLU because two of the employees claimed they were moved in retaliation for talking to the media. The transfer was rescinded by Chief Ronnie Few, who replaced Chief Ellerbe.

The arbitrator’s ruling in Capt. Smith lends more credibility to the other complaints, Capt. Smith said.

“It’s solidified all these complaints on the chief,” he said. “They have been upheld by a third-party arbitrator. He is about retaliation.”

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