- The Washington Times - Tuesday, October 30, 2012

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.

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