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SECOND DIVISION
Date Filed: November 9, 2004

No. 1-03-1931 

The Chicago Park District (the District), brings a directadministrative review appeal challenging an order of therespondent, the Illinois Labor Relations Board, Local Panel (theBoard), upholding a finding by an administrative law judge (theALJ) that the District violated sections 10(a)(1) and 10(a)(4) ofthe Illinois Public Labor Relations Act (the Act) (5 ILCS315/10(a)(1), (a)(4) (West 2002)) by reducing the hours of itspart-time employees without notice or an opportunity to bargainwith their exclusive representative, the respondent, the ServicesEmployees International Union, Local 73 (the Union).

The following issues are submitted for our review: (1)whether the Act required the District to bargain beforeimplementing the reduction in hours; (2) whether the parties'collective bargaining agreement waived mandatory bargaining overthe reduction-in-hours issue; and (3) whether the Board's findingthat the District refused to bargain was against the manifestweight of the evidence. We affirm the decision of the Board.

On January 18, 2002, the Union filed an unfair laborpractice charge against the District. Following aninvestigation, the Board issued a complaint for hearing. Thecomplaint alleged that there was a collective bargainingagreement (the Agreement) between the District and its employees,who were represented by the Union. On or about January 1, 2002,the District reduced the hours of work for certain of itsemployees without providing notice to the Union or theopportunity to bargain with the Union. The Union alleged thatthe District's conduct violated sections 10(a)(1) and 10(a)(4) ofthe Act. A hearing on the complaint commenced on July 11, 2002,and concluded on July 17, 2002. The pertinent testimony issummarized below.

The Union presented the testimony of several part-timehourly employees substantiating that their hours had been cutfrom their regular 25 to 30 hours per week prior to 2001 to 20hours per week in 2002.⁽¹⁾ The Union also presented the testimonyof Cynthia Rodriguez, chief negotiator for the Union with theDistrict.

Ms. Rodriguez testified that, in October 2001, the Unionbegan negotiating a new contract with the District. While Ms.Rodriguez has no involvement in the budget, she has to determinehow the budget will affect the Union members. Although budgethearings are held in the summer and community input is obtained,a copy of the budget is not available until two weeks before theactual budget is passed. The copy of the budget is then sent tothe research department to determine what the impact on themembers will be.

Ms. Rodriguez attended the budget hearings due to concernsthat the hours of the employees were to be cut. She received acopy of the budget at the end of November 2001. On November 20,2001, she received a fax from Francine Bailey, the District'shuman resource director, informing her that the District plannedto reduce employee hours in 2002 and listing the employees whowould be affected. At the next contract negotiations meetingwith the District, Ms. Rodriguez stated that she had received Ms.Bailey's fax and that she was demanding to bargain over theeffects of the hours reduction before continuing negotiations onthe economics of the new contract. She also stated that aninformation request was necessary prior to addressing the hours-reduction issue. The parties then addressed noneconomic issues.⁽²⁾ Ms. Rodriguez submitted her information request on December 3,2001.

Ms. Rodriguez explained that when she referred to "effectsbargaining," she meant both the cuts and their effect. However,she acknowledged that at the time of the November negotiationsession, her request to bargain was only over the effects of thereductions. Ms. Rodriguez further explained that by asking tobargain over the effects of the cuts, she was also indicatingthat she wished to bargain over the actual reduction itself.

Prior to the next scheduled negotiating session, Ms.Rodriguez was contacted by Charlie Rose, the attorney for theDistrict. Mr. Rose informed her that he did not have all theinformation she requested. The meeting was rescheduled forDecember 13, 2001. The December 13, 2001, session was againdevoted to noneconomic proposals.

Following the session, Ms. Rodriguez grew concerned that,although they had not yet bargained over the cuts in hours,because it had not yet been discussed, the District might proceedto implement the cuts on January 1, 2001. When she called Mr.Rose to tell him not to implement the cuts, he informed her thatthe cuts were going to be implemented January 1, 2002, and thathe was not going to bargain the effects of the cuts. Mr. Rosefurther informed her that the District was taking the sameposition it had on the cuts for the 2001 budget, namely, that theDistrict was not required to bargain over the cuts.

Following their telephone conversation, Ms. Rodriguez wrotea letter to Mr. Rose summarizing their conversation and advisinghim that the Union would file an unfair labor charge. In hisresponsive letter, Mr. Rose pointed out that the Union had neverrequested that the implementation of the reduction in hours bepostponed, that the Union had not taken the position thatcontract negotiations would not continue until the reduction inhours was negotiated, that while the Union had demandedinformation, it did not refuse to negotiate the new contractuntil after the hours reduction was negotiated, that Ms.Rodriguez had not objected to the cancellation of the December 6,2001, session and that, at this point, the District's positionwith respect to formal negotiations over the reduction-in-hoursissue was consistent with its position in the pending litigationover the 2001 reduction in hours.

On cross-examination, Ms. Rodriguez stated that she wrotethe letter to Mr. Rose because their telephone conversation wasthe first time he had informed her that the District refused tobargain the reduction-in-hours issue. She concluded that theDistrict was refusing to bargain based upon Mr. Rose's referencesto the pending litigation between the parties. According to Ms.Rodriguez, she never had the opportunity to propose alternativesto the District's reduction in employees' hours.

On behalf of the District, Gary Gordon, the District'sdirector of budget and management, testified that he wasresponsible for the preparation of the District's budget. Theprocess begins in the summer by reviewing the previous year'sexpenditures, revenue estimates and economic projections. Inaddition to 4 formal budget hearings, there were 22 localizedneighborhood budget hearings.

As of November 1, 2001, when the 2002 budget was drafted,the District was anticipating an increase in revenues fromapproximately $328 million to $334 million. However, because ofthe increases that went into the budget, there was insufficientmoney to cover anticipated operating expenses. Specifically, theavailable money for 2002 would be insufficient to continue thestaffing levels from 2001. The District wanted to avoid layoffs,so a wage freeze for nonunion employees was implemented andcertain nonunion positions eliminated. Other than limiting thefunds, the budget did not dictate the measures to be taken tokeep spending in line with the budget.

Mr. Gordon related that on December 14, 2001, following thebudget presentation, he had a conversation with Ms. Rodriguez. Ms. Rodriguez thanked him for the restoration of 11,000 hours todistrict employees which had been preliminarily written out ofthe budget. She then stated that now they "just needed to worryabout the rest of them." Mr. Gordon responded that they shouldthen discuss the Union giving up the wage increase, to which Ms.Rodriguez laughed.

On cross-examination, Mr. Gordon agreed that the savings tothe District from the reduction in hours amounted toapproximately $280,000.

Charlie Rose, an attorney, testified that he had representedthe District in contract negotiations and served as chiefnegotiator between the District and the Union. According to Mr.Rose, during the November 26, 2001, contract negotiation session,the Union wanted to negotiate the hours reduction, and Ms.Rodriguez stated that an information request regarding thereduction in hours would be forth coming. The parties neverdiscussed discontinuing bargaining for a successor agreementuntil the issue of the reduction in hours was bargained.

At the December 13, 2001, contract session, the Union didnot present any proposals for resolving the reduction-in-hoursissue. The Union indicated that the reduction in hours wouldaffect its economic proposal, and Ms. Rodriguez explained thatthe Union needed the information it requested in order to make anevaluation. The next contract session was scheduled for January10, 2002.

On December 19, 2001, Mr. Rose had a telephone conversationwith Ms. Rodriguez. Ms. Rodriguez expressed her understandingthat the successor contract would be put on hold and thereduction in hours would not be implemented until the parties hadbargained over the reduction-in-hours issue. Mr. Rose explainedto her that his understanding was that the parties wereproceeding to negotiate the successor contract and that the Unionwould shape its economic proposals to reflect the reduction inhours. There was no agreement to delay or hold off negotiationson the successor contract. Mr. Rose denied refusing to negotiateover the reduction in hours; he was still willing to negotiateover any proposals the Union had to make with respect to thereduction in hours.

Mr. Rose acknowledged receiving Ms. Rodriguez's December 19,2001, letter and that he responded to her by his letter ofDecember 21, 2001. In his letter, Mr. Rose explained that itappeared that the Union was seeking an acknowledgment that theDistrict was statutorily obligated to bargain over the reductionin hours, which was inconsistent with the position the Districtwas then taking in the pending litigation. Nonetheless, theDistrict remained willing to bargain over the reduction in hours.

On or about January 10, 2002, Mr. Rose spoke with Ms.Rodriguez, expressing his frustration that the Agreement hadexpired and the District still did not have the Union's economicproposal. In March 2002, the Union submitted its economicproposal, including proposals to deal with the reduction-in-hoursissue. The District has not refused to negotiate over any ofthose proposals, and the parties were continuing to negotiate.

Following the hearing, the ALJ concluded as follows: thereduction-in-hours issue was a mandatory subject of bargaining;the District violated the Act by unilaterally reducing the hoursof hourly employees without affording the Union the opportunityto bargain over the reduction in hours or its impact; and theUnion did not waive its right to bargain, either contractually orby failing to present proposals prior to implementation of thehours reduction. The ALJ's findings of fact and conclusions oflaw were adopted by the Board.

The District timely appealed the Board's decision.

An administrative agency's findings and conclusions onquestions of fact are deemed to be prima facie true and correct,and the reviewing court is limited to ascertaining whether suchfindings of fact are against the manifest weight of the evidence. City of Belvidere v. Illinois State Labor Relations Board, 181Ill. 2d 191, 204, 692 N.E.2d 295 (1998). An administrativeagency's findings on a question of law, on the other hand, arereviewed with less deference. Such determinations are reviewedde novo. City of Belvidere, 181 Ill. 2d at 205.

To determine whether the Agreement required the parties tobargain over the reduction-in-hours issue requires this court toexamine the legal effect of a given set of facts. Therefore, amixed question of law and fact is presented requiring theapplication of the clearly erroneous standard of review. City ofBelvidere, 181 Ill. 2d at 205.

Section 4 of the Act requires public employers to bargaincollectively regarding policy matters directly affecting wages,hours, and terms and conditions of employment, as well as theimpact thereon but does not require them to bargain over mattersof inherent managerial policy. 5 ILCS 315/4 (West 2002).

The test to determine whether an issue is the subject ofmandatory bargaining is set forth in Central City EducationAss'n, v. Illinois Educational Labor Relations Board, 149 Ill. 2d496, 599 N.E.2d 892 (1992). Our supreme court stated as follows:

"The first part of the test requires a determination ofwhether the matter is one of wages, hours and terms andconditions of employment. *** If the answer to this questionis no, the inquiry ends and the employer is under no duty tobargain.

If the answer to the first question is yes, then thesecond question is asked: Is the matter also one of inherentmanagerial authority? If the answer to the second questionis no, then the analysis stops and the matter is a mandatorysubject of bargaining. If the answer is yes, then thehybrid situation discussed in section 4 exists: the matteris within the inherent managerial authority of the employerand it also affects wages, hours and terms and conditions ofemployment." Central City Education Ass'n, 149 Ill. 2d at523.

The analysis then requires the Board to balance the benefitsthat bargaining would have on the decisionmaking process with theburdens that bargaining imposes on the employer's authority. Central City Education Ass'n, 149 Ill. 2d at 523. Which issuesare mandatory, and which are not, will be very fact-specificquestions that the Board, given its experience, is eminentlyqualified to make. See Central City Education Ass'n, 149 Ill. 2dat 510 (courts give substantial weight and deference to aninterpretation of an ambiguous statute by the agency charged withthe administration and enforcement of the statute).

In determining whether the first prong of the Central Citytest has been fulfilled, the court must determine if theDistrict's reduction in hours (1) involved a departure frompreviously established operating practices, (2) effected a changein the conditions of employment, or (3) resulted in a significantimpairment of job tenure, employment security, or reasonablyanticipated work opportunities for those in the bargaining unit. City of Belvidere, 181 Ill. 2d at 208.

The District argues that its decision to reduce employees'hours was not subject to mandatory bargaining because part-timeemployees have traditionally worked varying schedules andfluctuating hours and that part-time employees were neverguaranteed that their schedules would remain static.

However, the fact that the employees worked fewer hoursnecessarily impacted the wages they earned. The testimony at thehearing established that the employees had regularly worked thesame number of hours, the only change coming during the summermonths when their hours were increased because of the summerprograms. There was evidence that the reduction in hours did notresult in a reduction in the amount of work the employees wereexpected to perform. It also appears that the reduction in hoursresulted in a loss of benefits to the employees.⁽³⁾ Therefore, therecord establishes that the first prong of the Central City testhas been satisfied.

The Union maintains that the District has failed toestablish the second prong of the Central City test, arguing thatthe District did not establish that its decision to reduce hourswas economically motivated and, therefore, not a matter ofinherent managerial authority. However, as the Board pointsout, the record established that the reduction was driven byfinancial constraints, implicating the District's concern aboutits overall budget and the standards of services it would providein light of those financial concerns. Therefore, the secondprong of the Central City test was satisfied.

The third prong requires a balancing of the benefits to thedecisionmaking process against the burdens that bargaining wouldimpose upon the District's authority. Central City EducationAss'n, 149 Ill. 2d at 523. The District argues that, based uponthe complexity of adjusting the work schedules of employees inhundreds of locations to meet overall budgetary constraints whileminimizing adverse impact on the District's priorities, the Boardshould have concluded that the burdens outweighed the benefits tothe employees.

In Georgetown-Ridge Farm Community Unit District 4, 10 Pub.Employee Rep. (Ill.) par. 1044, Nos. 90-CA- 0047-S, 90-CA-48-S(IELRB March 1, 1994), the Board found that the school district'sdecision to reduce the hours of its cooks was a matter ofmanagerial authority. In weighing the burdens against thebenefits, the Board stated as follows:

"The benefits of bargaining an economically-motivatedreduction in hours could be substantial. An exclusiverepresentative may offer concessions in other areas toachieve the financial savings which the employer seeks oridentify employees who wish to work reduced hours. Becauseof their close view of operations, employees in thebargaining unit may be able to identify cost-saving measuresof which the employer is unaware. In addition ***, anexclusive representative affiliated with a state andnational union *** has access to a collection of researchand sample contract language. This information can enablethe exclusive representative to suggest alternativesolutions to the employer's financial problems." 10 Pub.Employee Rep. at IX-181.

The District argues that budget constraints required it todecide very quickly whether its priorities were best served bylaying off employees, reducing hours or a combination of both. The District relies on Community College District 508, 13 Pub.Employee Rep. (Ill.) par. 1045, No. 94-CA-0013-C (IELRB, March 7,1997), in which a community college unilaterally consolidatedclasses with low enrollment, resulting in layoffs and hours'reductions for bargaining unit members. In that case, the Boardfound the burdens bargaining would have imposed on the schooldistrict's authority to be substantial. However, in the presentcase, the District's concerns do not resemble the schooldistrict's concerns that it has been rendered unable to determinethe most effective way to provide educational services.

Moreover, the District has not established the need forspeed in implementing the reduction in hours. The budget itselfdid not require that the District reduce the employees' hours,and therefore, the fact that the budget needed to be passed bythe end of year does not support the District's argument. Finally, the Union and the District were already in negotiations.As the Board in Georgetown-Ridge Farm stated:

"In this case, the fact that contract negotiationsconcerning other issues affecting noncertified employeeswere occurring at the time of the District's decision toreduce the cooks' hours is another indication that thesubject of the reduction in hours would have been amendableto bargaining. The existence of simultaneous negotiationson other issues would have facilitated the development ofalternatives and concessions, and increased theopportunities for discussion." 10 Pub. Employee Rep. at IX-181.

We conclude that all three prongs of the Central City testhave been met and that the Board's conclusion that the reduction-in-hours issue was a mandatory subject of bargaining was notclearly erroneous.

The parties disagree over the standard of review. The Boardargues that the "clearly erroneous" standard applies because thequestion of waiver involves a mixed question of fact and law. The Union argues that the "manifest weight of the evidence"standard applies. See West Chicago School District No. 33 v.Illinois Educational Labor Relations Board, 218 Ill. App. 3d 304,311, 578 N.E.2d 232 (1991). However, while the court applied themanifest weight of the evidence standard in that case, thedecision was based on determination of factual matters. See WestChicago School District No. 33, 218 Ill. App. 3d at 311 (recordreflected that at the time the waiver clause was negotiated, theassociation did not intend to relinquish its midterm bargainingrights, and the bargaining history demonstrated that theassociation would not agree to such a waiver).

Contract interpretation is a matter of law to which thecourt applies a de novo standard of review. See IllinoisFraternal Order of Police Labor Council v. Town of Cicero, 301Ill. App. 3d 323, 335, 703 N.E.2d 559 (1998) (the court appliedde novo standard to interpretation of collective bargainingagreement). There are no factual determinations in interpretingthe Agreement in this case. Therefore, this court applies a denovo standard of review.

The District contends that, pursuant to various provisionsof the Agreement, it had the authority to reduce employee hourswithout having to bargain with the Union. The District relies onthe following pertinent sections of the Agreement:

It is understood and agreed that the District possessesthe sole right and authority to operate and direct theemployees of the District and its various departments in allaspects, including but not limited to, all rights andauthority exercised by the District ***. These rightsinclude, but are not limited to, the following:

g. To lay off or relieve employees for lack ofwork, lack of funds, reorganization, or other reasonspromoting the efficiency of the District.

Section 19.1. Application. *** Nothing containedherein shall be construed as a guarantee of hours of workper day or per week or as preventing the District, afternotice to the Union and an offer of any opportunity todiscuss the matter, from restructuring the normal workday orworkweek ***.

Section 19.5. Changes in Normal Workweek and Workday. Should it be necessary, in the interest of efficientoperations, to establish schedules departing from the normalworkday or workweek, the District shall give notice of suchchange to the affected bargaining unit employee as far inadvance as is reasonably practical, but not less than five(5) business days prior to the effective date of saidchange, except in unusual or emergency situations.

Section 28.2 Policy Changes. During the term of thisAgreement, the District agrees to notify the Union when orif it contemplates a policy change which will affect wages,hours, or terms and conditions of employment of employeesworking under this Agreement. The District further agreesto notify the Union in writing within ten (10) working daysif it intends to implement such a change."

The District argues that its right, pursuant to article IXof the Agreement, "[t]o lay off or relieve employees for *** lackof funds" gives it the authority to reduce employee hours. TheDistrict complains that the Board ignored a 1995 arbitrator'sdecision in which the arbitrator determined that the Districtcould relieve employees of work for budgetary or efficiencyreasons without having to bargain with the Union, as long at theDistrict gave the Union the notice required by the policy changeprovision in article XXVIII.

However, the 1995 arbitrator's decision concerned layoffs asopposed to reduction in hours. In American Federation of State,County & Municipal Employees v. Illinois State Labor RelationsBoard, 274 Ill. App. 3d 327, 653 N.E.2d 1357 (1995) (AFSCME),this court held that using the term "to relieve employees fromduty" vested the Illinois Department of Central ManagementServices with the authority to unilaterally "lay off" employees. AFSCME, 274 Ill. App. 3d at 335. Reduction in hours was notaddressed.

The District then argues that, under the "contract coverage"or "covered by" test, this court should merely use the customaryprinciples of contract interpretation, in contrast to the Board'sapproach of searching for unmistakable evidence that the Unionwaived its bargaining rights. The District relies on thefollowing cases utilizing the "contract coverage" test: Conoco,Inc. v. National Labor Relations Board, 91 F.3d 1523 (D.C. Cir.1996); Gratiot Community Hospital v. National Labor RelationsBoard, 51 F.3d 1255 (6th Cir. 1995); National Labor RelationsBoard v. United States Postal Service, 8 F.3d 832 (D.C. Cir.1993) (noting the difference between waiver and "covered by");and Chicago Tribune Co. v. National Labor Relations Board, 974F.2d 933 (7th Cir. 1992)⁽⁴⁾.

Under the "contract coverage" analysis, the fact that thecontract "covers" a subject in general terms indicates that theparties exercised their rights to bargain over that area. TheDistrict maintains that while the collective bargaining agreementdoes not specifically give it the right to reduce hours, the factthat the agreement allows it to lay off employees upon notice tothe Union "covers" its right to reduce hours after giving notice. As the Board noted in its opinion, the "clear andunmistakable" standard has been approved by the Illinois courts. See Central City Education Ass'n, 149 Ill. 2d at 530 (waiver in acollective bargaining agreement must be established by clear andexpress contract language). The National Labor Relations Boardspecifically has declined to apply the "covered by" test to analleged failure to bargain. See Exxon Research & EngineeringCo., 317 N.L.R.B. 675 (1995).⁽⁵⁾ Recent decisions of the Boardhave utilized the "clear and unmistakable language" test. SeeChicago Park District, 18 Pub. Employee Rep. (Ill.) par. 3036 Nos. L-CA-00-56, L-CA-01-040 (ILRB Local Panel November 25,2002); Metropolitan Alliance of Police, Bensenville PoliceChapter 165, 19 Pub. Employee Rep., par. 119 No. S-CA-02-077 par.119 (ILRB State Panel June 26, 2003).

The District also argues that the Board erred in failing toconstrue the Agreement as a whole. Under the "Entire Agreement"clause, the parties are not required to bargain over matters notincluded in the Agreement "except as may otherwise be required bylaw." Inasmuch as section 4 of the Act requires the parties tobargain over the reduction in hours, the "Entire Agreement"clause does not support the District's argument.

The question to be determined then is whether the agreementcontains "clear and unmistakable language" evidencing theparties' intention to waive the right to bargain over a reductionin employee hours.

As was previously noted, in AFSCME, the court found that theemployer's right "to relieve employees from duty" waived itsright to bargain over the employer's decision to lay offemployees. There was no reference to a corresponding right toreduce employee hours. Therefore, AFSCME, does not support theDistrict's argument.

The District also argues that its right under the Agreementto change employee hours permitted it to reduce hours andtherefore waived the Union's right to bargain.⁽⁶⁾ The Districtobserves that prior cases have noted that "'[a] grudging orstilted interpretation of collective bargaining agreements tendsto encroach upon the fundamental national policy favoring theordering of the employer-employee relationship by voluntarybargaining rather than governmental fiat, [citation]; it injectsinto the collective bargaining process an uncertainty thatdiminishes the prospects for successful bargaining. [Citations.]'[Citation.]" East Richland Education Ass'nv. IllinoisEducational Labor Relations Board, 173 Ill. App. 3d 878, 908-09,528 N.E.2d 751 (1988); see also Water Pipe Extension v. City ofChicago, 195 Ill. App. 3d 50, 65, 551 N.E.2d 1324 (1990).

In Control Services, Inc., 303 N.L.R.B. 481 (1991), orderenforced, N.L.R.B. v. Control Services, Inc., 961 F.2d 1568 (3rdCir. 1992), the collective bargaining agreement provided that"'Nothing contained in this agreement shall be deemed toconstitute a guarantee of any particular number of hours, or anyparticular days of work per week for any employee[]'" and that"'the Company has the unqualified right to schedule hours ofemployment ... [or] to relieve employees of duties because oflack of work.'" Control Services, Inc., 303 N.L.R.B. at 483.

The National Labor Relations Board (NLRB) rejected therespondent-company's argument that it was therefore contractuallyentitled to reduce employees' hours of work and consequentlytheir wages and benefits. Noting that waivers of statutoryrights must be "clear and unmistakable," The NLRB determined thatthe fact that the employees were not "guaranteed" any particularnumber of hours meant exactly that and could not be interpretedto mean that the union locals had waived their rights to bargainover the changes in the number of hours to be worked. ControlSevices, Inc., 303 N.L.R.B. at 484.

We conclude that the proper test to be applied is the "clearand unmistakable language" test, and that under that test, theUnion did not waive its right to bargain over the reduction inemployees' hours.

An agency's findings of fact are held to be prima facie trueand correct and must be upheld unless they are against themanifest weight of the evidence. City of Belvidere, 181 Ill. 2dat 204. "'The manifest weight of the evidence is that which is"the clearly evident, plain and indisputable weight of theevidence." [Citations.] In order for a finding to be againstthe manifest weight of the evidence, an opposite conclusion mustbe clearly apparent. [Citation.]' [Citation.]" Drogos v.Village of Bensenville, 100 Ill. App. 3d 48, 54, 426 N.E.2d 1276(1981).

The District contends that the Board's factual determinationthat it refused to bargain the reduction-in-hours issue with theUnion is against the manifest weight of the evidence.

In its order, the Board concluded that the record evidenceda clear refusal to bargain on the part of the District. TheBoard specifically noted that while Mr. Rose initially agreed tobargain over the 2002 reductions and was processing the Union'srequest for information, he thereafter informed Ms. Rodriguezthat the District was standing by its position in the 2001 caseand did not have to bargain over the reduction in hours. TheDistrict's refusal to bargain was further established by Mr.Rose's letter to Ms. Rodriguez, in which he stated that theDistrict's position on formal negotiations as to the hoursreduction was consistent with its position in the 2001 case.

The District argues that Mr. Rose never refused tonegotiate. The District points out that the Board adopted theALJ's findings of fact and conclusions of law and notes that theALJ merely found that Ms. Rodriguez could have misinterpretedwhat Mr. Rose said in their December 19, 2001, telephoneconversation.

However, the ALJ specifically rejected Mr. Rose's denialthat the District had refused to bargain with the Union. In afootnote to her decision, the ALJ stated as follows:

"Rose testified that he never said to Rodriguez that hewould not negotiate over the reduction in hours. However,given his statement to her that the [District] maintainedits position that the hours reduction did not concern amandatory subject of collective bargaining, it wasreasonable for Rodriguez to interpret that statement as, ineffect, a statement that the [District] would not negotiate. For this reason, I reject Rose's testimony that he neversaid that the [District] would not negotiate the reductionin hours."

The Board's finding that the District refused to bargainover the reduction in hours is supported by the record in thiscase, and the opposite is not clearly apparent.

We conclude that the Board's finding that the Districtrefused to bargain over the reduction-in-hours issue was notagainst the manifest weight of the evidence.

For all of the foregoing reasons, we affirm the order of theBoard.

Affirmed.

HOFFMAN, P.J., and SOUTH, J., concur.

1. The District does not dispute that the hours were reduced.

2. The negotiations are divided into economic and noneconomicissues. Noneconomic issues are language issues.

3. In the 2001 case, the Board found that the decrease in thenumber of hours worked decreased the employees' eligibility foremployer-paid benefits.

4. In that case, the court of appeals questioned the "force"of the "clear and unmistakable" principle in the face of theSupreme Court's determination that even a waiver ofconstitutional rights need not be proven by clear and convincingevidence. Chicago Tribune Co, 974 F.2d at 936-37. In any eventthe court determined that the management-rights clause gavemanagement the exclusive right to establish reasonableregulations relating to employee conduct and allowed it toregulate off-the-job-conduct as well as on-the-job conduct, asthe two could be related and thus within the scope of the clause. Chicago Tribune Co., 974 F.2d at 937.

5. Subsequently, enforcement was denied in that case, but thecourt did not reach the waiver issue. Exxon Research &Engineering Co. v. National Labor Relations Board, 89 F.3d 228,232 (5^th Cir. 1996).

6. The Union maintains that sections 19.1 and 19.5 of theAgreement allowing the District to make changes in the workweekand workday schedule apply only to full-time (monthly) employees,because section 19.02 defines the normal work week as fiveconsecutive days and the normal work day as eight hours. However,section 19.2 also states "for all employees."