State of Ohio and Ohio
State Troopers Association
OPINION AND AWARD
In the matter of Arbitration
Ohio State Troopers Association, Inc.
State of Ohio, Department of Public Safety,
Number OCB# 15-00-010821-0102-04-01
An arbitration hearing was
conducted June 19, 2002 at the Office of Collective Bargaining, Columbus,
Ohio. The parties provided the arbitrator with a stipulation stating the
issued to be: “In
accordance with Article 20, Section 20.08 (8) of the Collective Bargaining
Agreement the parties submit the following statement of issue for resolution
by the Arbitrator.
Is the Electronic Technician 2 (52472) classification entitled to
Step 6 in Pay Range 10?
If so, did the
Employer violate Article 60.06 of the labor agreement by not advancing the
Grievant to Step 6 in Pay Range 10, and what shall the remedy be?
contract provisions include:
Definitions of Rates of Pay
rates of pay as used in this agreement are defined as follows:
Class base rate is the minimum hourly rate of the pay range for the
classification to which the employee is assigned.
Step rate is the specific value within the range to which the employee is
Base rate is the employee's step rate plus longevity adjustment.
Regular rate is the base rate plus supplements, whichever apply.
Total rate is the regular rate plus shift differential, where applicable.
any other provision of this Agreement, if these definitions lead to any
reduction in pay, the previous application shall apply.
Range Type Step 1 Step 2 Step 3 Step 4 Step 5 Step 6
Range Type Step 1 Step 2 Step 3 Step 4 Step 5 Step 6
Range Type Step 1 Step 2 Step 3 Step 4 Step 5 Step 6
who are promoted within the unit shall be placed at a step to guarantee them
an increase of approximately four percent (4%), except as otherwise provided
in Section 60.06.
employee shall receive a step increase upon satisfactory completion of the
probationary period. Step increases shall occur annually thereafter if the
employee receives an overall "satisfactory" rating on his/her
annual performance evaluation. If the employee's performance evaluation is
not completed on time, the employee shall not be denied a step increase.
Pay Range Assignments for Unit Classifications
classifications are assigned to the following pay ranges:
Highway Patrol Communications Technician
Highway Patrol Communications Technician 2
Highway Patrol Dispatcher I
Highway Patrol Dispatcher 2
Highway Patrol Electronic Technician 1
Highway Patrol Electronic Technician 2
Highway Patrol Electronic Technician 3
Highway Patrol Trooper
Pay Range Reassignments
whose classifications receive a pay range reassignment shall have their
salary adjusted in accordance with Section 60.06 of this Article. All
Highway Patrol Dispatcher 1 '8 with two (2) years seniority shall be
promoted to Highway Patrol Dispatcher 2. All employees effected by such
promotion or upgrading shall be placed on that step of the new pay range
that is equal to the employee's present rate of, if none exist that are
equa1, then the next greater amount.
Section 20.08 Limitations of the Umpire
disputes involving the interpretation, application or alleged
violation of a provision of this Agreement shall be subject to arbitration.
umpire shall have no power to add to, subtract from or modify any of the
terms of this Agreement, nor shall the umpire impose on either parry a
limitation or obligation not specifically required by the language of this
2 - EFFECT
OF AGREEMENT - PAST PRACTICE
This Agreement is a final and complete agreement of
all negotiated items that are in effect throughout the term of the
Agreement. This Agreement may be amended only by written agreement between
the Emp1oyer and the Union. No verbal statements shall supersede any
provisions of this Agreement.
benefits and other rights granted by the Ohio Revised Code, which are not
specifically provided for or abridged by this Agreement, shall be determined
by those applicable statutes, regulations, rules or directives. The parties
agree that they will negotiate any changes to wages, hours and terms and
conditions of employment. as may be required by law.
60 was then modified by a Memorandum of Understanding:
parties presented witnesses who explained the history of bargaining
surrounding this issue. Documentary
evidence was presented and subsequent to the hearing, each party submitted a
post-hearing brief in which they argued their respective positions.
testimony and materials, along with the closing briefs, were reviewed and
considered by the arbitrator in reaching this decision.
that this case deals with a matter of contract interpretation, the union
assumed the burden of proof and presented its case first.
case concerns the classification of Electronics Technician 2.
There are approximately forty persons in this classification.
While the grievant in this action is Dale L. Flanigan, this is an
“et. al.” grievance and thus the award will apply to all others
Electronics Technician 2 is assigned to District Headquarters locations and
the Columbus Headquarters. They
have the responsibility to install and maintain various pieces of electronic
equipment utilized by the personnel of the Ohio State Highway Patrol.
This equipment includes radios, sirens, citizen band units, blood
alcohol computers, radar units, videotape equipment and emergency public
these persons have been compensated on “Pay Range 10” of the
employer’s pay tables. There
were five “steps” available for ET 2’s.
Patrol Troopers were also included in the Pay Range 10 category.
the negotiations for the current collective bargaining agreement the Union
sought upward reclassification of all its members. The parties proceeded to fact-finding and the fact-finders
report was soundly rejected by the union membership.
statutory conciliation process began with mediation.
During these discussions it was agreed that the Employer would
conduct a classification review.
some misunderstanding occurred regarding which classifications would be
reviewed, the results of the study determined that Troopers, Sergeants, and
Dispatchers would receive a pay range increase.
Union assumed the new pay ranges would mirror existing State ranges bearing
the same numerical designation. The
State assumed the new pay ranges would be negotiated.
parties proceeded to negotiate the implementation of the Classification
negotiations seemed to reach impasse. In
order to break the deadlock the Director of the Office of Collective
Bargaining, Steve Gulyassy, and the Executive Director of the Union, Jim
two men successfully negotiated a Memorandum of Understanding (Joint exhibit
4) that set forth the new pay ranges over the life of the agreement.
This agreement added a pay range 11 and 13 in FY 2002
Union contends the language is clear and unambiguous. Only ET 2’s remain in Pay Range 10 and that pay range
includes a sixth step.
was noted that DAS read the language the same way. ET’s who qualified, began to receive the Pay Range,
step 6, amount. This payment
was discontinued when the State Highway Patrol called DAS and told them to
correct the payment.
Union also notes that a posting for ET 2 listed the Pay Range, Step 6 amount
as the maximum payment for the position.
Subsequently a correction was offered.
The new posting did not correct the supposed error.
Union argues the Parol Evidence rule applies in this case and urges
the arbitrator to disregard the historical and intent testimony offered by
Union offered testimony by Mr. Roberts, that Mr. Gulyassy affirmatively
agreed to leave the Pay Range 10, Step 6 for ET 2’s as a part of their
Employer’s position is that the sixth step of Pay Range 10
provided as a seniority step for Troopers in previous Collective Bargaining
Agreements and the fact it was left after the Troopers were moved to Pay
Range 11 was merely an error and the Employer should not be required to pay
for something that was clearly in error.
us first turn to the Union’s view that the Parol Evidence Rule.applies.
Arbitrator Walter N. Kaufman comments on “Parol Evidence” in a 1999
its name, the
not a rule of evidence but a rule of substantive law, the effect of
which is to define the subject matter to be interpreted. To that end,
the rule precludes consideration of contemporaneous oral agreements and
prior oral or written agreements which concern the same subject-matter,
and which are offered in order to add to or vary the agreement in
exception to the Parol Evidence Rule is explained by Arbitrator DiLauro when
he notes: “…evidence of pre-contract negotiations is admissible to aid
in the interpretation of ambiguous language as an exception to the
parol-evidence rule.” 
Employer does not advance the argument that the language is ambiguous but
rather notes that the pattern of circumstances led to contract wording which
points to an unintended result.
is true that the history surrounding these negotiations is complicated by
the complexity of state government. The
classification study was conducted totally independent of the persons who
bargained the contract.
a result, further negotiations were necessary to implement the results of
negotiations led to the memorandum of understanding which, in essence,
modified the Collective Bargaining Agreement.
Highway Patrol contends that all of this action allowed step 6 of Pay Range
10 to stay in the contract when it was never intended to be available for ET
essence, it is their contention that the continued inclusion of Step 6 was a
the argument of the Ohio State Highway Patrol would be stronger if the
resulting MOU did not also continue to list step 6. The MOU contains the wording: “The parties agree to the
following pay tables.”
Executive Director Roberts testified that the inclusion was not a mistake
but part of a deal struck between himself and OCB Director Gulyassy.
Director Roberts is a veteran Labor Relations Professional who brings
a record and reputation of personal integrity to the witness stand.
His testimony stands unrefuted.
employer attempted to continue the hearing in order to attempt to reach Mr.
Gulyassy and obtain his testimony about the negotiations between himself and
Arbitrator denied that request. In
addition to the lack of certainty about reaching Director Gulyassy, his
testimony would likey not be persuasive in this matter.
Gulyassy’s testimony would either support that of Director Roberts or his
would disagree. If he were in
agreement, that would add nothing to the current case.
If he disagreed then that would mean there was no bi-lateral intent
regarding the language. The
lack of bi-lateral intent sends the arbitrator back to the clear language of
I am not convinced that the employer has established that a mistake was
made, lets assume for a moment, that there was a mistake. In order to prevail over plain language a mutual
mistake (emphasis added) must have been made.
In a United Steelworkers case Arbitrator D.L. Howell defines a
“mutual mistake” and cites other cases that illustrate the same point.
should be noted that a
exists when both parties sign off contract language which does not
correspond with their actual agreement. In this limited circumstance, an
arbitrator may reform the contract to reflect the true intent of the
parties. (See Hibbing Ready Mix, 97
LA 248). In order to affect the clear language of the collective
bargaining agreement, however, the mistake must be mutual. A
unilateral mistake by one party does not provide a sufficient basis for
contract reformation. (See Pillowtex Corp., 92
LA 321). The Agreement here under consideration does not reflect a
in reference to counting the length of service with VIALCO in determining
severance pay.” 
testimony does not support that a mutual mistake was made.
It is clear the Ohio State Highway Patrol feels a mistake was made
but there is no evidence that the Office of Collective Bargaining feels that
there was a mistake.
these reasons I agree with the Union. The
Patrol Evidence Rule does apply.
While the testimony and arguments about bargaining history were
instructive and necessary to understand this matter, they do not provide a
basis for the Arbitrator to “reform” the written agreements in affect.
us turn to the interpretation of the language of the Collective Bargaining
Agreement and the Memorandum of Understanding.
Employer’s own witness, Dan Santry of DAS testified that he read the
language and believed the Electronic Technician 2’s were entitled to Step
6 of Pay Range 10 and made those adjustments until instructed by Highway
Patrol Administrators to discontinue the action and correct the believed
within the Highway Patrol also apparently made the same interpretation when
a Posting Notice was issued for a new Electronic Technician 2.
plain reading of the Collective Bargaining Agreement and the Memorandum of
Understanding indicates that there are six steps in Pay Range 10.
The only employees compensated pursuant to Pay Range 10 are
Electronic Technician 2’s. Therefore
those who have met the requirements of the necessary longevity and
satisfactory evaluations are entitled to receive step 6.
D.L. Howell, in another case noted that an arbitrator cannot reach beyond
the plain language.
It is a principle of contract construction that arbitrators give words
their ordinary and popularly accepted meaning.
In this respect, under the
rule, a written agreement may not be changed or modified by any oral
statements or arguments made by the parties in connection with the
negotiation of the agreement. A written contract consummating previous
oral and written negotiations is deemed, under the rule, to embrace the
entire agreement, and, if the writing is clear and unambiguous,
will not be allowed to vary the contract.
While some might argue that arbitrators should consider any evidence
showing the true intention of the parties and that this intention should
be given effect whether expressed by the language used or not, the general
denial of power to add to, subtract from, or modify the agreement provides
special justification for the observance of the
rule by arbitrators.” 
Based upon the language of the Collective Bargaining Agreement and the Memorandum of Understanding the only possible interpretation is to grant the grievance.
the reasons herein stated, the grievance is granted.
Electronic Technician 2’s shall be entitled to Step 6 of Pay Range
10 upon meeting all other contractual requirements.
Pay for those so qualified shall be retroactive to the effective date
of the MOU or the date thereafter when the ET 2 meets the necessary
London, Ohio this 7th day of August 2002.
 In re CITY OF ARTESIA (Calif.) and AFSCME, LOCAL 1520, 113 LA 1093, December 29, 1999.
 In re TOWNSHIP OF PEMBERTON [N.J.] and AFSCME COUNCIL 71, LOCAL 2738, 114 LA 523, March 6, 2000.
 In re ST. CROIX [V.I.] ALUMINA L.L.C. and United Steelworkers of America, Local 7701.
 In re SAVANNAH SYMPHONY SOCIETY, INC. and AMERICAN FEDERATION OF MUSICIANS, LOCAL 447-704, February 23, 1994, 102 LA 575