of Ohio and
Ohio State Troopers Association
the matter of Arbitration
The 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?
2. 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?
Relevant 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
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
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
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.
Limitations of the Umpire
disputes involving the interpretation, application or alleged
violation of a provision of this Agreement shall be subject to
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
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
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
testimony and materials, along with the closing briefs, were reviewed
and considered by the arbitrator in reaching this decision.
In that this case deals with a matter
of contract interpretation, the union assumed the burden of proof and
presented its case first.
This 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
The 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
Historically these persons have been
compensated on “Pay Range 10” of the employer’s pay tables.
There were five “steps” available for ET 2’s.
Highway Patrol Troopers were also
included in the Pay Range 10 category.
During 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.
The statutory conciliation process began with
mediation. During these
discussions it was agreed that the Employer would conduct a
While 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
The 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.
The parties proceeded to negotiate the implementation
of the Classification Review.
Again 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 Roberts met.
These 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
The Union contends the language is
clear and unambiguous. Only
ET 2’s remain in Pay Range 10 and that pay range includes a sixth
It 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.
The 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.
The Union argues the Parol Evidence
rule applies in this case and urges the arbitrator to disregard the
historical and intent testimony offered by the employer.
The 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 negotiations.
The 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.
Let 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 case.
its name, the
is 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 issue.”
An 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.” 
The 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
It 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.
As a result, further negotiations were
necessary to implement the results of that study.
Those negotiations led to the
memorandum of understanding which, in essence, modified the Collective
The 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 2’s.
In essence, it is their contention that
the continued inclusion of Step 6 was a mistake.
Certainly 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
OSTA 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
The employer attempted to continue the
hearing in order to attempt to reach Mr. Gulyassy and obtain his
testimony about the negotiations between himself and Director Roberts.
This 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.
Director 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 the agreement.
While 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
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.” 
The 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.
For 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
Let us turn to the interpretation of
the language of the Collective Bargaining Agreement and the Memorandum
The 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 overpayments.
Someone within the Highway Patrol also
apparently made the same interpretation when a Posting Notice was issued
for a new Electronic Technician 2.
The 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.
Arbitrator 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,
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
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.” 
upon the language of the Collective Bargaining Agreement and the
Memorandum of Understanding the only possible interpretation is to grant
For 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 qualifications.
Issued at 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