Arbitrator Rules DCFEMS Unlawfully Retaliated Against Union President

An arbitrator has concluded that DCFEMS and Fire Chief Kenneth Ellerbe wrongfully transferred IAFF Local 36 Union President Edward Smith last year in retaliation for his union activities. Arbitrator Leonard M. Wagman handed down his decision on October 19, 2012 ordering Captain Smith to be returned to his position at Rescue 1, Platoon 1.

Captain Smith had been involuntarily transferred on July 8, 2011.

Rather than start a “he said she said” with my chief officer friends and colleagues from the DCFEMS (or DCFD as you prefer), let me quote from the decision so readers can view the arbitrator’s actual words not my interpretation of what the arbitrator said. The entire decision is provided below for download for those interested in reading all 29 pages. What appears below is from the arbitrator – unless in double brackets like this [[ which is my comments]].

  • I find from Chief Ellerbe’s testimony that he made the decision to transfer Captain Smith. … Smith had no prior knowledge of this transfer. Nor had he requested a transfer. Smith was shocked. He felt it was retaliatory….
  • Captain Smith sought an explanation, “as to why I am being transferred,” invoking the terms of the CBA’s Article 19, which he quoted as follows:  …When an employee is transferred or reassigned other than at his or her request, and the employee believes that the transfer or reassignment may be illegal under the terms of this Article, the employee shall upon written request, be informed by a superior of the reason for the transfer or reassignment. …
  • Assistant Fire Chief of Operations, Timothy H. Gerhart [[provided a response that said]] “Captain Smith’s reassignment falls within the terms listed in Article 19 of the [CBA]”. …
  • On August 26, Local 36 submitted a written grievance to Chief Ellerbe complaining about Captain Smith’s involuntary transfer and FEMS “failure to provide an explanation …. “
  • Deputy Fire Chief-Executive Officer, Labor Relations Liaison Edward M. Pearson, on behalf of FEMS, gave the following response to Local 36 regarding Captain Smith involuntary transfer: The Department exercised the right to transfer Captain Smith in accordance with the District of Columbia Official Code, specifically, Subchapter XVII. Labor-Management Relations, Management rights; 1-617.08(a) “The respective personnel authorities (management) shall retain the sole right, in accordance with applicable laws and rules and regulations; (2) To hire, promote, transfer, assign, and retain employees in positions within the agency and to suspend, demote, discharge, or take other disciplinary action against employees for cause….”
  • Local 36 received Chief Pearson’s response, and quickly rejected it as not responsive to its request, as reflected in an e-mail from Eric Bowers, Chairman of its Grievance Committee, to Chief Pearson, which stated, in pertinent part: Perhaps you misunderstood: we asked for the explanation required under Article 19, Section B (2) of the Collective Bargaining Agreement (CBA). Neither the CBA nor the law permits management to transfer/reassign arbitrarily capriciously, or illegally. …
  • On September 12, Local 36, by letter to Chief Ellerbe and the District of Columbia’s Office of Labor Relations and Collective Bargaining, announced that it was submitting the grievance arising from Captain Smith’s involuntary transfer to arbitration as provided for in the CBA. …

 

  • In January [[2011]], Chief Ellerbe … proposed a new logo for the Department, changing from the old DCFD logo to a new FEMS logo. Local 36 objected publicly to the proposal on the grounds that Chief Ellerbie had neglected to invite the Union to join the committee in drawing up the proposed FEMS logo, and that the proposed change would require members to spend their own money on uniform articles reflecting the new logo. …
  • The Washington Times of April 12 reported that out-of-service ladder trucks had impaired the Department’s response to a fire on April 8 in the Deanwood Section of the District of Columbia….   Included in The Washington Times of April 12, were comments by Local 36’s Second Vice President Dabney Hudson, and President Edward Smith. The latter conceded that it was “unclear whether anything would have turned out differently at the Deanwood fire … but it highlights the burden created by absent trucks.” Smith added: “It’s a huge safety problem for our members and [D.C.] citizens and visitors.” The article also reported Smith’s and Dabney’s complaints that D.C.’s “aging ladder trucks go out of service, while limited reserve trucks are often in disrepair or tied up on other calls”. …
  • In its press release, a flier, issued on May 31, Local 36 called attention to 7 of 25 basic life support ambulances that were out- of- service for mechanical repairs. The press release’s content received exposure on local television channels 4 (NBC), 7(ABC), and 9(WUSA); in print, and possibly on radio. The flier invited readers to contact “President Ed Smith,” who serves as the local’s spokesperson for media contacts. …
  • On June 9, Local 36 joined with National Nurses United and District of Columbia Nurses Association in addressing a letter, on behalf of “front-line paramedics, emergency medical technicians, fire fighters and registered nurses in [the] city’s acute care hospitals,” to Mayor Gray complaining that during the city’s first heat wave of the summer, “the city’s fleet of emergency vehicles was found wanting.” … Further, the letter suggested the areas of the EMS that needed improvement and reminded the Mayor that the Department’s leadership and the city’s leaders dating back to Mayor Fenty’s administration had committed to the improvement of the District’s EMS delivery service. Local36 and the nurses’ organizations encouraged the Mayor to correct the matters complained of in their letter. …
  • In a letter to the Mayor, dated June 15, with “cc.” to Chief Ellerbe and the entire D.C. City Council, Edward Smith, writing as president, under the letterhead of Local 36, addressed issues “involving the delivery of Emergency Medical Service in the Nation’s Capitol.” … Smith advised the Mayor that EMS providers were “required to operate under a licensed physician.” According to Captain Smith’s letter, a lapse between Dr. Mountvamer’s departure and Dr. Miramontes’ arrival would render the District of Columbia vulnerable to “legal action as well as adverse media attention for your administration. In the interest of protecting the Mayor’s administration and Local 36’s members, Smith asked Mayor Gray for Dr. Mountvamer’s departure date, the arrival date of the latter’s successor, and the name of the interim EMS medical director. …
  • On June 20, Local 36 issued a press release headlined: “Female Firefighters Take Issue with Fire/EMS Chiefs Pregnancy Policy.” In the upper left hand margin of the press release, readers saw: “Contact: President Ed Smith” together with a phone number and a fax number. …
  • On June 26, following a ceremony dedicating a telephone box at Engine Company 16, Chief Ellerbe approached Captain Smith and began talking about the press coverage of the pregnancy policy. The chief said he was displeased with Smith’s press coverage of that policy. Ellerbe expressed his thought that Smith issued the press release on purpose, knowing that the chief was out of town and that Smith was going to have to pay for it. After a brief conversation about making choices in life, Chief Ellerbe and Captain Smith parted. Smith understood that the chief was threatening retaliation. …
  • At 10:20 pm, on June 30, the website of The Washington Times carried Chief Ellerbe’s announcement of the new dispensation for pregnant female firefighters…. At the end of the article, The Times reported that Chief Ellerbe said that the Department would not retaliate against any members seeking light duty, “or those who have spoken out about the issue in recent weeks.[[“]] Finally, The Washington Times quoted the Chief as having added: “If we did something like that it would be readily obvious to the naked eye.” and “We won’t treat people that way.” …
  • On Sunday, July 3, during the July 4th holiday weekend, Chief Ellerbe made an unscheduled midmorning visit to Captain Smith’s firehouse, wearing civilian clothes. Chief Ellerbe asked for Rescue Squad 1 ‘s journal, which logs the unit’s activities. Ellerbe took the journal upstairs to Deputy Chief Willis’s office, who was the on-duty operations chief. …Later in the day, Chief Willis approached Captain Smith and, on direct order from Chief Ellerbe, asked him to change some entrees in the journal including those pertaining to an incident involving Squad 1, 4th platoon, and an accident. Smith made the requested entrees in the log. During his employment with FEMS, Smith had never witnessed or heard of a fire chief visiting a firehouse in civilian clothes…

[[Captain Smith’s transfer was announced on July 8.]]

  • The Department ‘s stated reason for transferring Captain Smith from Rescue Squad 1 to Engine 7, in July 2011 was the policy authored by then-Interim Fire/EMS Chief Kenneth B. Ellerbe in Special Order #57, Series 2000…[which stated]  It is the goal of the Department to have its members posses as varied a background in fire service activities as organizationally possible. To this end, uniform fire officers can expect changes in their assignments after approximately three years. …
  • Local 36 contends that the Department involuntarily transferred Captain Edward Smith from Rescue Squad 1 to Engine 7 because he engaged in union activity, and thereby violated Article 19, Section A, and Article 2, Section A of the CBA. …
  • I find that Chief Ellerbe’s and the Department’s responses to Captain Smith’s request for an explanation were evasive, amounting to a statement that “we did it because we can.” …
  • In its effort to escape a finding that its decision to transfer Captain Smith was motivated by his protected union activity the Department has gone from evasion to shifting reasons for its conduct. This resort to a variety of responses, including the Chiefs change of focus, strongly suggests that the proffered explanation, Special Order #57, Series 2000 is a pretext contrived to shroud the real reason for Chief Ellerbe’s decision to transfer Captain Smith from Rescue Squad 1 to Engine 7. …
  • 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. I find, therefore that by thus discriminating against Captain Edward Smith the Department violated Section 8(a)(3) and (1) of the Act, and D.C. Official Code§ 1-617.01(a)(l) and (3). Consequently, I also find that FEMS’ discriminatory involuntary transfer of Captain Edward C. Smith violated Article 19 Section A of the CBA. I further find that by this same unlawful conduct the Department also violated Article 2, Section A by interfering with his right to assist the Union….
  • The District of Columbia Fire & Emergency Medical Services Department shall rescind the involuntary transfer of Captain Edward C. Smith to Engine 7 and reinstate him to his former position as captain in Rescue Squad 1, Platoon 1.

Here is the full decision. Smith Arbitration Award (10-19-12) (1)

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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