580 N.W.2d 905 (1998)
229 Mich. App. 54
ORGANIZATION OF SCHOOL ADMINISTRATORS AND SUPERVISORS, AFSA, AFL-CIO, Plaintiff-Appellant/Cross-Appellee,
v.
DETROIT BOARD OF EDUCATION, Respondent-Appellee/Cross-Appellant.
Docket No. 192852.
Court of Appeals of Michigan.
Submitted May 13, 1997, at Detroit.
Decided March 27, 1998, at 9:05 a.m.
Released for Publication July 14, 1998.
*907 Mark H. Cousens, Southfield for Charging Party-Appellant/Cross-Appellee.
Riley and Roumell, P.C. by George T. Roumell, Jr., and Gregory T. Schultz, Detroit, for Respondent-Appellee/Cross-Appellant.
Before MARKEY, P.J., and JANSEN and WHITE, JJ.
*906 WHITE, Judge.
The charging party, Organization of School Administrators and Supervisors, AFSA, AFL-CIO (OSAS), appeals from an order of the Michigan Employment Relations Commission (MERC)[1] dismissing the unfair labor practice charges it brought against respondent, Detroit Board of Education. The OSAS argues that the MERC erred in concluding that respondent did not violate its statutory duty to bargain by unilaterally reducing rates of pay and hours of work for certain school administrators and that the MERC erred in failing to exercise its statutory jurisdiction and deferring to arbitration the OSAS's charge relating to respondent's unilateral reduction of rates of pay. Respondent cross appeals from the same order, arguing that the MERC erred in finding that the hours at issue were not overtime.
We conclude that the MERC did not err in finding no unfair labor practice with regard to respondent's limiting the work hours of the adult education department heads and allegedly changing their compensation. However, we vacate the MERC's finding that the adult education department heads' evening work was not overtime, because the OSAS's counsel conceded the contrary during oral argument before this Court.[2] We affirm the MERC's conclusion that respondent had no duty to bargain regarding the reduction of hours of the vocational-technical administrators' evening work. Regarding the MERC's disposition of the OSAS's charge based on a unilateral change in the method of compensating the vocational-technical administrators' evening work, from a per diem to hourly rate, we remand with instructions that the MERC address this issue anew and provide a clear explanation for its decision that there was no unfair labor practice. Regarding respondent's cross appeal, we conclude that the MERC's finding that the vocational-technical administrators' evening hours were not overtime was supported by competent, material, and substantial evidence on the whole record.

I
Respondent operates an adult education program consisting of a vocational-technical *908 training component, which teaches job skills, and an adult basic education component, which teaches basic skills such as reading and math, leading to a high school equivalency diploma. The adult basic education courses are taught principally at night, at numerous sites throughout the city of Detroit. The vocational-technical courses are taught at respondent's three vocational centers.
The OSAS is the bargaining agent for supervisors and administrators employed by respondent, including those responsible for supervision of the teachers in the vocational-technical and adult basic education programs. At pertinent times, there were three principals responsible for the vocational-technical program; seven department heads responsible for the adult basic education program; and two central office administrators responsible for the overall operation of both programs.
The collective bargaining agreement in effect at the time of this dispute covered the period between July 1, 1992, and June 30, 1994. In December 1993, the state Legislature reorganized school funding, cutting adult education funding in Detroit by about fifty-three percent and making student eligibility more stringent.
On January 7, 1994, Dr. Arthur Carter, respondent's deputy superintendent of government relations and community services, who was responsible for the adult education program, sent a memo to the directors of adult education stating that the budget had been reduced, projections indicated a deficit may exist in the current year in adult education, and there would be further reductions the next year. The memo stated that effective January 20, 1994, there would be a fifty percent reduction in hours for all administrative staff working for adult education in an additional assignment capacity and that all such staff would be paid at the hourly department-head rate. After the OSAS requested bargaining, the parties met on February 15, 1994. After the meeting, Dr. Carter rescinded his January memo. He issued a new memo on February 17, 1994, stating that it superseded "all previous communications regarding administrative schedules and working hours." The February memo stated that effective February 28, 1994:
1. All vocational/technical administrators will be paid for no more than 24 hours biweekly at the department head rate. Schedules should be adjusted to allow for sufficient administrative coverage....
* * * * * *
3. No administrator or teacher in adult education will be paid for overtime unless approved, in writing, by me. I strongly discourage all overtime.
The parties met again on March 2, 1994, and discussed the issue of "overtime" for the vocational-technical administrators. No resolution was reached, and the parties agreed to meet again.
The OSAS filed an unfair labor practice charge against respondent on March 4, 1994, alleging violations of the public employment relations act (PERA), M.C.L. § 423.201 et seq.; M.S.A. § 17.455(1) et seq. The charge stated that the vocational-technical administrators worked on a full-time basis as building officials, while working parttime as administrators of the evening vocational-technical program, and that "[s]chedules have typically required these administrators to supervise programs on a daily basis, usually approaching 24 hours per week." The charge further stated that the OSAS and the board had been bargaining to replace an agreement scheduled to expire June 30, 1994, and that issues discussed had included hours to be worked and rates of pay for vocational-technical administrators. The charge stated that the parties were involved in preliminary bargaining and that neither party had suggested that an impasse existed. Finally, the charge stated, in part:
7. Notwithstanding the pendency of bargaining, and the absence of any impasse, on February 17, 1994 the Board unilaterally capped the number of hours a vocational/technical administrator might work. The change was made without prior consultation with or agreement of the Union.
8. The unilateral change violates the Act for the reason that:

*909 A. The change was unilateral. The Union neither approved nor consented to the modification.
B. The change was commenced absent impasse or any warning that the change might be imposed.
C. The change was imposed without initiating or exhausting dispute resolution procedures available under the Act.
D. The change was initiated although the Union had demanded bargaining on the issue, the parties had not reached a conclusion to that process.
The OSAS's unfair labor charge did not mention the adult education department heads.
The parties met again on April 27, 1994. Subsequently, the parties met for the purpose of negotiating the successor collective bargaining agreement on May 10, 19, 24, and June 22, 1994. The OSAS did not raise the issue of overtime or supplemental pay at any of the May and June meetings. The parties reached a settlement on the successor agreement on June 22, 1994, and a new contract was ratified, which did not contain any modifications regarding the issues presented here.
Respondent filed its answer on October 7, 1994.[3] Respondent denied that bargaining was in a preliminary state, stating that "a new agreement has been reached covering all issues between the parties; that any claim here has been waived by the Charging Party, having had the opportunity to bargain concerning same."[4] Respondent denied that it had unilaterally capped the vocational-technical administrators' evening hours, stating that it had bargained "even prior to bargaining over negotiations of the new contract [and] that all issues between the parties have been settled." Respondent denied that the change in hours violated § 10 of the PERA, M.C.L. § 423.210; M.S.A. § 17.455(10), stating that it was "exercising its right to determine when, how, and where delivery of services should be made and to determine and control overtime."
A three-day hearing was held, after which the hearing referee recommended that the charges be dismissed in their entirety:
The question presented here is whether an Employer may change or eliminate supplemental employment without first bargaining to impasse or agreement with a Union representing these employees in their regular assigned employment.
It is concluded that the Detroit Board of Education had the right to assign, reassign or eliminate additional overtime, supplemental (or by whatever terminology) assignments in the Adult Education Program without bargaining with the Charging Party to impasse or agreement. These assignments are not the bargaining unit work that is contemplated in the collective bargaining agreement. There was no impact on bargaining unit work.
* * * * * *
The Employer met and bargained the impact of its decision. The Charging Party had ample opportunity to discuss these events during the period of negotiations for a successor collective bargaining agreement, but chose not to do so because, as the Union states, it would have been futile. Whether or not the Employer met individually with the employees affected by the additional work cuts is immaterial, as the subject matter is not a mandatory subject of bargaining.
The MERC affirmed the hearing referee's conclusion that respondent did not violate its duty to bargain, but for different reasons:
First, we disagree with the Administrative Law Judge that these assignments fell into the category of "overtime." Both the adult basic education administrators and the vocational education administrators had two separate jobs. First, they administered Respondent's daytime adult education or vocational education programs, for which they were paid a salary. Secondly, *910 they administered Respondent's evening adult education programs. The adult basic education administrators were paid an hourly rate for their second job. The vocational education administrators were paid on a per diem basis.
We also disagree with the Administrative Law Judge that the administrators' evening jobs did not constitute bargaining unit work. This work clearly fell within the scope of the work performed by the bargaining unit and covered by the contract. Moreover, it was treated as such by the parties, as exemplified by the fact that Respondent gave Charging Party notice of its proposed actions. The fact that the evening programs were administered by the same administrators who supervised the daytime programs is not relevant to the question of whether the work constituted bargaining unit work....
However, we agree with the Administrative Law Judge's ultimate conclusion that Respondent had no duty to bargain. We find that Section 9.0 of the parties' 1992-1994 contract waived Charging Party's right to demand bargaining over changes in the hours of jobs within the unit. In this case, the hours of the vocational education administrators' evening jobs were reduced. The evening jobs of the adult basic education administrators were merged into their daytime jobs, so that time worked in the evening reduced the number of hours worked during the day. In both cases, these actions were explicitly authorized by the language of Section 9.0 which states, "It is understood that this provision does not preclude the setting of hours by the Board or the General Superintendent when necessary...."
In addition to reducing the hours of both groups, the Respondent also changed the method of compensating vocational education administrators for their evening work. Prior to March 2, 1994, the vocational education administrators were paid on a per diem basis, whereas after this date they were paid on an hourly basis. However, according to Charging Party, the per diem rate paid to vocational education administrators for their evening work is set out in the parties' contract. Therefore, the dispute constitutes a bona fide dispute over whether this provision of the contract was breached by the change in the method of compensation. Under these circumstances, the dispute should be resolved through the parties' grievance arbitration mechanism....
The OSAS filed a motion for reconsideration, which the MERC denied by stating in pertinent part:
[W]e disagree with Charging Party that in concluding that the dispute over the change in the method of paying vocational education administrators constituted a bona fide dispute over contract interpretation we "deferred the matter to arbitration" contrary to Detroit Fire Fighters v. Detroit, 408 Mich. 663 [293 N.W.2d 278] (1980). Rather, we simply found that no unfair labor practice was committed under these circumstances.
This appeal ensued.

II
The OSAS first argues that the MERC erred in concluding that respondent did not violate its statutory duty to bargain by unilaterally reducing hours of work and rates of pay for certain school administrators.
Appellate review of a MERC decision is limited. Detroit Police Officers Ass'n v. Detroit, 212 Mich.App. 383, 388, 538 N.W.2d 37 (1995), aff'd. 452 Mich. 339, 551 N.W.2d 349 (1996). Legal rulings of an administrative agency are set aside if they are affected by a substantial and material error of law; factual findings of the MERC are conclusive if supported by competent, material, and substantial evidence on the whole record. M.C.L. § 423.216(e); M.S.A. § 17.455(16)(e); Const. 1963, art. 6, § 28; Amalgamated Transit Union, Local 1564, AFL-CIO v. Southeastern Michigan Transportation Authority, 437 Mich. 441, 450, 473 N.W.2d 249 (1991).
The party asserting a claim under the PERA has the burden of establishing an unfair labor practice. M.C.L. § 423.210; M.S.A. § 17.455(10). Public employers have *911 a duty to bargain over wages, hours, and other terms and conditions of employment. M.C.L. § 423.215(1); M.S.A. § 17.455(15)(1). Under the PERA, an employer commits an unfair labor practice if, before bargaining, it unilaterally alters or modifies a term or condition of employment, unless the employer has fulfilled its statutory obligation or has been freed from it. Port Huron Ed. Ass'n v. Port Huron Area School Dist., 452 Mich. 309, 317, 550 N.W.2d 228 (1996).
The procedure for determining whether an employer must bargain before altering a mandatory subject of bargaining involves a two-step analysis: Is the issue the union seeks to negotiate covered by or contained in the collective bargaining agreement? If not, did the union somehow relinquish its right to bargain? Id. at 322, n. 16, 550 N.W.2d 228, citing Dep't of Navy v. Federal Labor Relations Authority, 295 U.S. App.D.C. 239, 252, 962 F.2d 48 (1992). "`A waiver occurs when a union knowingly and voluntarily relinquishes its right to bargain about a matter; but where the matter is covered by the collective bargaining agreement, the union has exercised its bargaining right and the question of waiver is irrelevant.' " Port Huron Ed Ass'n, supra at 319, 550 N.W.2d 228, quoting Dep't of Navy, supra at 248, 962 F.2d 48.
"Indeed, the difference between the two concepts goes to the structural heart of labor law. When parties bargain about a subject and memorialize the results of their negotiation in a collective bargaining agreement, they create a set of enforceable rulesa new code of conduct for themselveson that subject. Because of the fundamental policy of freedom of contract, the parties are generally free to agree to whatever specific rules they like, and in most circumstances it is beyond the competence of the Authority, the National Labor Relations Board or the courts to interfere with the parties' choice.... On the other hand, when a union waives its right to bargain about a particular matter, it surrenders the opportunity to create a set of contractual rules that bind the employer, and instead cedes full discretion to the employer on that matter. For that reason, the courts require `clear and unmistakable' evidence of waiver and have tended to construe waivers narrowly." [Port Huron Ed Ass'n, supra at 319, 550 N.W.2d 228, quoting Dep't of Navy, supra at 248, 962 F.2d 48.]

A
Section 9.0 of the collective bargaining agreement states:
9.0 HOURS OF WORK
In order to attain ultimate efficiency in the operation of the Detroit Public Schools and to provide the best possible educational program to the pupils served thereby, it is essential for administrative and supervisory personnel to work a schedule which reasonably permits the flexibility necessary for the achievement of such goals. Such a schedule may, at times, involve work in and out of the school building and, at times, frequently outside the regular school day. The professional discretion of good administrators and supervisors in scheduling their hours of work shall be respected insofar as such discretion is reasonable and is consistent with the school program and its aforestated aims. Professional discretion may be denied for good and sufficient reason. It is understood that this provision does not preclude the setting of hours by the Board or the General Superintendent when necessary, and is not intended to supersede the requirements of any leave policy. In instances where the General Superintendent or Administrative Heads have established regular work hours, prior approval for any deviation by administrators and supervisors is required.
We again observe that the hours issue we consider concerns only the vocational-technical administrators, because the OSAS's counsel conceded during oral argument that the adult-education department heads' evening work was overtime and that respondent could properly limit these hours.

B
We conclude that the MERC did not err as a matter of law in interpreting § 9.0. Section 9.0 states a general principle of professional *912 discretion regarding hours, but recognizes that the board or general superintendent may set work hours when necessary, and that there might be instances where the general superintendent or administrative heads set hours. There was no testimony that, before this dispute, the vocational-technical administrators' evening hours were ever the subject of bargaining. Thus, the MERC did not err in concluding that the subject was covered by § 9.0 and that § 9.0 granted the board or general superintendent the authority to set hours when necessary and therefore no additional bargaining was required.
That § 9.0 covered the issue and stated a general principle of professional discretion subject to respondent's overriding right to set hours is also supported by (1) the language of § 9.0, including its title, "Hours of Work"; (2) the statement of the OSAS's counsel during oral argument, in response to a question regarding how hours had been set before this dispute, that the hours were "set by management" and the union did not object to the number of hours originally assigned; (3) the testimony of Dr. Kimberly Peoples, director of the adult education program at the Golightly Career and Technical Center from 1985 to 1994, that from 1985 to 1992 she worked two evenings a week, i.e., about twelve hours weekly, on the recommendation of the administration, and in 1992 increased her hours to four evenings a week, when the adult education program was going through a restructuring; and (4) the testimony of Dr. Arthur Carter that he was unaware of, and never approved, Dr. Peoples' increasing her evening work from two to four evenings a week in 1992. Under these circumstances, although our analysis differs slightly with regard to the concept of waiver, we conclude that the MERC did not err in concluding that under § 9.0 respondent had no duty to bargain on the issue of capping the vocational-technical administrators' evening work at twenty-four hours biweekly.
We therefore affirm the MERC's determination that respondent did not violate its statutory duty to bargain on the issue of capping the vocational-technical administrators' work hours.

III
The OSAS's remaining argument with respect to the adult education department heads is that respondent unilaterally implemented a compensatory time-off scheme in lieu of paying overtime. The testimony at the hearing does not support the claim that the rate of compensation for overtime, if authorized, was unilaterally modified; nor did the OSAS present any documentary evidence to support the claim that respondent had implemented a change in rate of pay. Thus, we conclude that the MERC did not err in finding no unfair labor practice with regard to the adult education department heads' pay.

IV
The OSAS next argues that the MERC erred in refusing to exercise its statutory jurisdiction and instead deferring to arbitration the issue regarding respondent's change in the method of compensation of the vocational-technical administrators from per diem to hourly.
Although the OSAS asserts that the MERC erred in deferring the unfair labor practice charge to arbitration, it appears that the MERC simply found that there was no unfair labor practice. Nevertheless, neither the MERC's original opinion nor its opinion regarding the OSAS's motion for reconsideration clearly explains why it concluded that there was no unfair labor practice. We therefore remand to the MERC with instructions to address this issue anew and to provide a clear explanation of the reasons for its decision.

V
On cross appeal,[5] respondent argues that the MERC erred in refusing to find that *913 the hours at issue were overtime or supplemental hours and that respondent could thus modify them without bargaining, even though the MERC ultimately found for other reasons that respondent had no obligation to bargain over its actions. As we have already observed, the OSAS's counsel conceded during oral argument that the adult education department heads' evening work was an extension of their normal work and thus overtime. Therefore, the MERC's contrary finding is vacated.
Regarding the vocational-technical administrators, we conclude that the MERC's factual finding that their evening assignments were within the scope of work performed by the bargaining unit and were covered by the contract is supported by competent, material, and substantial evidence on the whole record.
Affirmed in part, vacated in part, and remanded in part. We do not retain jurisdiction.
MARKEY, P.J., concurred.
JANSEN, Judge (dissenting).
I respectfully dissent. I would reverse the ruling of the Michigan Employment Relations Commission (MERC) that respondent, Detroit Board of Education, did not commit any unfair labor practices and remand to the MERC for it to fashion an appropriate remedy in light of a finding that respondent committed unfair labor practices.

I
I concur with the facts as set forth by the majority and reiterate the standard of review. Factual findings of the MERC are conclusive if supported by competent, material, and substantial evidence on the whole record. M.C.L. § 423.216(e); M.S.A. § 17.455(16)(e); Const. 1963, art. 6, § 28; Amalgamated Transit Union, Local 1564, AFL-CIO v. Southeastern Michigan Transportation Authority, 437 Mich. 441, 450, 473 N.W.2d 249 (1991). Review of factual findings of the MERC is to be undertaken with sensitivity, and due deference is to be accorded to its administrative expertise. Id. Reviewing courts should not invade the exclusive fact-finding province of administrative agencies by displacing an agency's choice between two reasonably differing views of the evidence. Id.
Legal rulings of administrative agencies are not given the deference accorded factual findings. Legal rulings of an administrative agency are set aside if they are in violation of the constitution or a statute, or affected by a substantial and material error of law. M.C.L. § 24.306(1)(a) and (f); M.S.A. § 3.560(206)(1)(a) and (f); Amalgamated Transit Union, supra, p. 450, 473 N.W.2d 249.

II
The first argument of the charging party, Organization of School Administrators and Supervisors, AFSA, AFL-CIO (OSAS), is that the MERC erred in finding that respondent did not violate its statutory duty to bargain when it unilaterally reduced rates of pay and hours of work for certain school administrators. The MERC found that respondent was not required to bargain over the hours of work for the school administrators because in the collective bargaining agreement the union had waived its right to demand bargaining over changes in the hours of jobs. With respect to rates of pay, the MERC determined that a bona fide dispute existed regarding whether the collective bargaining agreement was breached, and that this dispute would have to be resolved through the parties' grievance arbitration mechanism. However, in the order following the OSAS's motion for reconsideration, the MERC stated that it found that respondent *914 committed no unfair labor practice with respect to changing the method of compensation.
Under subsection (15)(1) of the public employment relations act (PERA), public employers have a duty to bargain over wages, hours, and other terms and conditions of employment. M.C.L. § 423.215(1); M.S.A. § 17.455(15)(1). Under the PERA, an employer commits an unfair labor practice if, before bargaining, it unilaterally alters or modifies a term or condition of employment, unless the employer has fulfilled its statutory obligation or has been freed from it. Port Huron Ed. Ass'n v. Port Huron Area School Dist., 452 Mich. 309, 317, 550 N.W.2d 228 (1996). An employer may defend against a charge that it has unilaterally altered working conditions by arguing that the union has waived its right to demand bargaining. Id., p. 318, 550 N.W.2d 228.
A waiver occurs when a union knowingly and voluntarily relinquishes its right to bargain about a matter. Dep't of Navy v. Federal Labor Relations Authority, 295 U.S. App.D.C. 239, 248, 962 F.2d 48 (1992). When a union waives its right to bargain about a particular matter, it surrenders the opportunity to create a set of contractual rules that bind an employer, and instead gives full discretion to the employer regarding the matter. Id. The courts require clear and unmistakable evidence to support a claim that the union has waived the statutory right. Id.; Port Huron, supra, p. 320, 550 N.W.2d 228.[1]
Section 9.0 of the collective bargaining agreement contains the following:
9.0 HOURS OF WORK
In order to attain ultimate efficiency in the operation of the Detroit Public Schools and to provide the best possible educational program to the pupils served thereby, it is essential for administrative and supervisory personnel to work a schedule which reasonably permits the flexibility necessary for the achievement of such goals. Such a schedule may, at times, involve work in and out of the school building and, at times, frequently outside the regular school day. The professional discretion of good administrators and supervisors in scheduling their hours of work shall be respected insofar as such discretion is reasonable and is consistent with the school program and the aforestated aims. Professional discretion may be denied for good and sufficient reason. It is understood that this provision does not preclude the setting of hours by the Board or the General Superintendent when necessary, and is not intended to supersede the requirements of any leave policy. In instances where the General Superintendent or Administrative Heads have established regular work hours, prior approval for any deviation by administrators and supervisors is required. [Emphasis added.]
The MERC found that this section (particularly the emphasized portion) in the collective bargaining agreement established that the OSAS waived its right to demand bargaining over changes in the hours of jobs within the bargaining unit.
I would find that the MERC erred as a matter of law in interpreting § 9.0 to mean that the OSAS waived its right to demand bargaining over changes in the hours of jobs. The initial question whether contract language is ambiguous is a question of law. Port Huron, supra, p. 323, 550 N.W.2d 228. If the contract language is clear and unambiguous, its meaning is a question of law. Id. Where the contract language is unclear or susceptible to multiple meanings, interpretation is a question of fact. Id. Although I agree with the MERC that the contractual provision is unambiguous, I disagree with its interpretation of the provision.
In reading the provision as a whole, there is no waiver by the union of its right to demand bargaining concerning unilateral changes by the employer regarding hours of work. Section 9.0 deals with the scheduling *915 of hours for administrative and supervisory personnel and permits flexible schedules. Section 9.0 clearly permits administrators and supervisors the discretion to schedule their work hours, but provides that such exercise of discretion must be consistent with the school program and be reasonable. The sentence seized upon by the MERC, when properly understood, merely allows respondent to set schedules for administrators and supervisors when necessary. In other words, administrators and supervisors do not always work normal "nine to five" business hours. Therefore, administrators and supervisors are accorded discretion in setting their workday hours under § 9.0. However, if such discretion is abused by an administrator or supervisor, then respondent may set work hours. Thus, respondent could demand that a supervisor must begin work at 8:30 a.m., rather than 9:00 a.m., but the language says nothing about reducing the number of hours worked. Accordingly, § 9.0 permits respondent to set a fixed workday or schedule for the administrators and supervisors, but it does not waive the union's right to demand bargaining over changes in the hours of jobs.
The difference here is significant. Section 9.0 allows respondent to set schedules; it does not waive the OSAS's right to bargain over the unilateral reduction in hours. There is no "clear and unmistakable waiver" by the union with respect to the employer's unilateral decision to reduce the number of hours worked. See, e.g., Wayne Co. Government Bar Ass'n v. Wayne Co., 169 Mich.App. 480, 487, 426 N.W.2d 750 (1988) (the union did not clearly and unmistakably waive its right to bargain over cost-of-living-allowance benefits after the expiration of the collective bargaining agreement where the contractual language stated that the payments for the benefits would "be made quarterly during the term" of the collective bargaining agreement); Kent Co. Ed.Ass'n v. Cedar Springs Public Schools, 157 Mich.App. 59, 66, 403 N.W.2d 494 (1987) (a "zipper" clause in a collective bargaining agreement waiving the right to collective bargaining on matters covered by the agreement was not a clear and explicit waiver of the right to bargain over the change in the number of high school class periods absent any specific reference in the agreement to the number of class periods). Therefore, I would conclude that the MERC's decision was affected by a substantial and material error of law when it did not properly interpret the parties' collective bargaining agreement. Because hours constitute a mandatory subject of bargaining, respondent could not unilaterally change the number of hours without first bargaining over that condition, absent impasse or waiver. Ottawa Co. v. Jaklinski, 423 Mich. 1, 13, 377 N.W.2d 668 (1985); Port Huron, supra, p. 317, 550 N.W.2d 228. Therefore, under the PERA, respondent has committed an unfair labor practice in unilaterally changing the hours to be worked without first bargaining with the OSAS.

III
Respondent, in its cross appeal, argues that the MERC's decision regarding hours of work should be affirmed by this Court for a different reason. Respondent maintains that the hearing referee was correct in ruling that because the hours at issue constituted overtime, this was not a mandatory subject of bargaining and respondent could unilaterally reduce such hours. The MERC rejected the hearing referee's reasoning in this regard and ruled that the evening work assignments "clearly fell within the scope of the work performed by the bargaining unit and covered by the contract."
First, I agree with the majority that respondent has standing to raise this issue. Pursuant to M.C.L. § 423.216(e); M.S.A. § 17.455(16)(e), any party aggrieved by a final order may seek review of the MERC's order in this Court with respect to an unfair labor practice charge. The MERC specifically ruled that the work assignments at issue were not overtime, but were bargaining unit work. Such a ruling directly affects respondent's bargaining rights because overtime is not part of regular wages and may be unilaterally reduced by an employer. Roseville v. Police Officers Ass'n of Michigan, 1987 MERC Lab. Op. 182; St Clair Co. Rd. Comm. v. Local 516M, Service Employees Int'l Union, AFL-CIO, 1992 MERC Lab. Op. 316. Therefore, respondent is an aggrieved party because the MERC's order *916 affects respondent's rights and bears directly on its interests. Grace Petroleum Corp. v. Public Service Comm., 178 Mich.App. 309, 312-313, 443 N.W.2d 790 (1989); Midland Cogeneration Venture Ltd. Partnership v. Public Service Comm., 199 Mich.App. 286, 304, 501 N.W.2d 573 (1993).
Further, I agree that the MERC's factual finding that the assignments in the adult education program and vocational education program were within the scope of the work performed by the bargaining unit and covered by the contract is supported by competent, material, and substantial evidence on the whole record.[2] The MERC's factual findings in this regard are:
The Administrative Law Judge concluded that Respondent had no duty to bargain over the elimination of overtime/supplemental assignments in the adult education program because these assignments were not bargaining unit work and had no impact on bargaining unit work. First, we disagree with the Administrative Law Judge that these assignments fell into the category of "overtime." Both the adult basic education administrators and the vocational education administrators had two separate jobs. First, they administered Respondent's daytime adult education or vocational education programs, for which they were paid a salary. Secondly, they administered Respondent's evening adult education programs. The adult basic education administrators were paid an hourly rate for their second job. The vocational education administrators were paid on a per diem basis.
We also disagree with the Administrative Law Judge that the administrators' evening jobs did not constitute bargaining unit work. This work clearly fell within the scope of the work performed by the bargaining unit and covered by the contract. Moreover, it was treated as such by the parties, as exemplified by the fact that Respondent gave Charging Party notice of its proposed actions. The fact that the evening programs were administered by the same administrators who supervised the daytime programs is not relevant to the question of whether the work constituted bargaining unit work.
The MERC's factual findings in this regard are conclusive because they are supported by competent, material, and substantial evidence on the whole record. M.C.L. § 423.216(e); M.S.A. § 17.455(16)(e). The MERC's finding that the adult basic education administrators and the vocational education administrators had two separate jobs is supported by the testimony of Dr. Kimberly Peoples, the director/administrator of the Golightly Career and Technical Center. She testified that she was paid a daily rate for her work in the evening program before February 1994, and that after the February 1994 change, she was paid an hourly rate for her evening work. Further, she testified that her "regular day school job" was from 7:30 a.m. until 3:15 p.m., and that her adult education work was from 3:15 p.m. until 10:00 p.m. Dr. Peoples also testified that she was a salaried employee. Further, Dr. Arthur Carter, respondent's deputy superintendent of government relations and community services, testified that the full-time job of vocational technical director was separate and distinct from the evening job of department head of a vocational technical center.
The MERC's finding that the administrators' evening jobs constituted bargaining unit work and was covered by the contract is also supported by competent, material, and substantial evidence on the whole record. Sections 8.5 (evening school) and 8.6 (adult education) of the collective bargaining agreement specifically provide for these work assignments.
*917 Accordingly, the MERC's factual finding that the evening hours at issue did not constitute overtime hours is conclusive because that finding is supported by competent, material, and substantial evidence on the whole record.

IV
As its final issue, the OSAS argues that the MERC's deferral to arbitration of the issue regarding respondent's unilateral change in the method of pay for vocational education administrators was a substantial and material error of law.
The MERC found that there was no unfair labor practice with regard to changing the method of pay and that the dispute concerned whether the contract was breached by the change in the method of compensation (from a daily to an hourly basis).[3] I believe that the MERC's decision in this regard was affected by a substantial and material error of law. M.C.L. § 24.306(1)(a) and (f); M.S.A. § 3.560(206)(1)(a) and (f).
A particular course of conduct may violate contractual and statutory duties. Port Huron, supra,p. 320, 550 N.W.2d 228. In this case, the OSAS contends that respondent had a duty to bargain over the change of the method of compensation because it is a mandatory subject of bargaining. Clearly, changing the method of compensation from daily to hourly affected wages. See, e.g., Jackson Community College Classified & Technical Ass'n, MESPA v. Jackson Community College, 187 Mich.App. 708, 713, 468 N.W.2d 61 (1991). Wages are a mandatory subject of bargaining. Id.; Ottawa Co, supra, p. 13, 377 N.W.2d 668. Under the PERA, an employer commits an unfair labor practice if, before bargaining, it unilaterally alters or modifies a term or condition of employment, unless the employer has fulfilled its statutory obligation or has been freed from it. Port Huron, supra, p. 317, 550 N.W.2d 228.
In its decision and order regarding the motion for reconsideration, dated April 22, 1996, the MERC specifically stated that it found that no unfair labor practice was committed under these circumstances. I must disagree with this ruling because respondent unilaterally changed a method of compensation for the evening classes. Because this affects wages, it was a mandatory subject of bargaining and could not be unilaterally altered by the employer. Therefore, respondent committed an unfair labor practice under the PERA when it unilaterally altered the method of compensation. Respondent had a statutory duty to bargain with the OSAS concerning any change in the method of compensation because it directly affected wages.
Accordingly, I would reverse the MERC's ruling that respondent did not commit any unfair labor practices when it unilaterally changed hours of work and the method of compensation. They are mandatory subjects of bargaining and there was no waiver by the union or a fulfillment of respondent's statutory duty to bargain. I would remand to the MERC for it to fashion an appropriate remedy in light of this finding.
NOTES
[1]  The order is dated February 2, 1996.
[2]  During oral argument before this Court, the OSAS's counsel stated that, in contrast to the vocational-technical administrators, the adult education department heads' evening hours were an extension of the work they performed during the day. The OSAS's counsel further stated that the union did not contest respondent's right to determine that the adult education department heads could not work in the evening without permission. We thus disagree with the dissenting opinion on this issue, although we agree that the OSAS asserts that there was a unilateral change in the compensation for overtime. This claim is addressed in part III.
[3]  We note that respondent's answer responded to paragraphs ten through thirteen of the OSAS's charge. However the copy of the OSAS's charge in the record is only nine paragraphs long, and the docket printout does not indicate it ever amended its charge. Respondent's answer also refers to a "first" and "second" violation, while the OSAS's charge refers to only one.
[4]  This particular waiver argument was not addressed by the MERC, but was by the hearing referee. See p. 913, infra.
[5]  The OSAS argues that respondent has no standing to raise this issue because it is not an aggrieved party. Pursuant to M.C.L. § 423.216(e); M.S.A. § 17.455(16)(e), any party aggrieved by a final order may seek review of a MERC order in this Court with respect to an unfair labor practice charge. The MERC ruled that the work assignments at issue were bargaining unit work and not overtime. Such a ruling directly affects respondent's bargaining rights because overtime is not part of regular wages and may be unilaterally reduced by an employer. Roseville v. Police Officers Ass'n of Michigan, 1987 MERC Lab. Op. 182; St. Clair Co. Rd. Comm. v. Local 516M, Service Employees Int'l Union, AFL-CIO, 1992 MERC Lab. Op. 316. Respondent is therefore an aggrieved party because the MERC's order affects respondent's rights and bears directly on its interests. Grace Petroleum Corp. v. Public Service Comm., 178 Mich.App. 309, 312-313, 443 N.W.2d 790 (1989); Midland Cogeneration Venture Ltd. Partnership v. Public Service Comm., 199 Mich.App. 286, 304, 501 N.W.2d 573 (1993).
[1]  In Dep't of Navy, supra, p. 247, 962 F.2d 48, the court explained that a union will usually clearly and unmistakably waive its right to bargain either by an express agreement (for example, a "zipper clause") or through its bargaining history with the employer. A zipper clause is a provision in a collective bargaining agreement that purports to close out bargaining during the contract term and to make the written contract the exclusive statement of the parties' rights and obligations. Id., p. 247, n. 8, 962 F.2d 48.
[2]  At this point, I take issue with the majority's decision to vacate the MERC's finding that the adult education department heads' evening work was not overtime on the basis that the OSAS's counsel conceded during oral argument that the department heads' work was overtime. During oral argument, the OSAS's counsel explained that the union did not challenge the employer's right to say that the department heads could not work in the evening without permission, but objected to the employer's unilateral creation of the compensatory time schedule. I do not take this statement to be a concession that the department heads' evening work was overtime, not subject to mandatory bargaining. In any event, I would agree with the union that respondent was under a statutory duty to bargain regarding the creation of the compensatory time schedule.
[3]  I note that the MERC's rulings in this regard appear to be contradictory. In the February 2, 1996, decision and order, the MERC stated that the dispute regarding pay was "a bona fide dispute over whether this provision of the contract was breached by the change in the method of compensation." The MERC then stated that the dispute should be resolved through the parties' grievance arbitration mechanism. In its April 22, 1996, decision and order, the MERC stated with respect to the method of pay issue, "we simply found that no unfair labor practice was committed under these circumstances." In fact, the MERC did not so find in the previous decision. However, the MERC's finding that there was no unfair labor practice committed with respect to the change in the method of pay should be addressed because this constitutes a statutory unfair labor practice issue that cannot be deferred to private arbitration. See Detroit Fire Fighters Ass'n v. Detroit, 408 Mich. 663, 293 N.W.2d 278 (1980).


653 F.Supp. 617 (1987)
MISSOURI PACIFIC RAILROAD COMPANY, et al.
v.
RAILROAD COMMISSION OF TEXAS and its members, Hon. James E. Nugent, Hon. Mack Wallace and Hon. Clark Jobe.
Civ. No. A-86-CA-406.
United States District Court, W.D. Texas, Austin Division.
January 27, 1987.
*618 Robert B. Burns, Jr., Karl G. Johnson, Jr., Wilson, Grosenheider & Burns, Austin, Tex., for Missouri Pacific R. Co., Southern Pacific Transp. Co., The Atchison, Topeka and Santa Fe Railway Co., Burlington Northern R. Co., Missouri-Kansas-Texas R. Co., St. Louis-Southwestern Railway Co., Kansas City Southern Railway Co., and, Louisiana and Arkansas Railway Co.
Douglas Fraser, Energy Div./Transp., Austin, Tex., for defendants.

ORDER
NOWLIN, District Judge.
Before the Court is the Plaintiffs' Motion for Partial Summary Judgment. The Court has considered the motion and the response of the Defendants in light of the entire file in this cause, and is of the opinion *619 that the motion is meritorious and must GRANTED.

I. BACKGROUND
In response to the deterioration of railroad tracks, roadbed and safety equipment, Congress enacted the Federal Railroad Safety Act of 1970, Pub.L. No. 91-458, 84 Stat. 971 (1970) (current version at 45 U.S.C. §§ 421-441 (1986)). Congress specifically considered the role states would play in railway safety regulation:
With the exception of industrial or plant railroads the railroad industry has very few local characteristics. Rather in terms of its operations, it has a truly interstate character calling for a uniform body of regulation and enforcement. It is a national system.... To subject a carrier to enforcement before a number of different state administrative and judicial systems in several areas of operation could well result in an undue burden on interstate commerce.
H.R. REP. No. 1194, reprinted in 1970 U.S. CODE CONG. & AD. NEWS 4104, 4110-11. The Federal Railroad Safety Act is specifically designed to promote and regulate safety in all areas of railroad operation 45 U.S.C. §§ 421, 431 (1986). The United States Secretary of Transportation is charged with the duty to prescribe all necessary rules, regulations, orders and standards for all areas of railroad safety. Id. § 431. The Secretary of Transportation has delegated these responsibilities to the Administrator of the Federal Railroad Administration (FRA), a unit of the Department of Transportation. 49 C.F.R. § 1.49(m) (1985).
The Texas Railroad Commission has adopted a series of regulations that address rail safety issues. TEX. R.R. COMM'N, 16 TEX.ADMIN.CODE § 5.616-5.621 (hereinafter cited as 16 T.A.C. § ____). Sections 5.616 and 5.618 require that the railroads file various reports, codes and wayside detector map with the Texas Railroad Commission. Section 5.617 demands that a fire extinguisher and a first aid kit be installed in every caboose and locomotive. Section 5.619 prescribes construction of walkways along tracks, in or adjacent to roadbeds, in yards or terminals, and in other locations frequented by various workmen. Finally, section 5.620 regulates the existence of visual obstructions at public grade crossings. Specifically, section 5.620(b) attempts to regulate vegetation control standards for the roadbed and adjacent area.
These proposed rules were announced by the Railroad Commission on December 6, 1985. Public comments were solicited and received by the commission, but no public hearing was held. The rules were adopted on June 3, 1986 and became effective on June 25, 1986.
On July 22, 1986, the Plaintiff railroads filed the instant complaint for declaratory relief as well as preliminary and permanent injunctive relief. The complaint alleges that the subject regulations are preempted by federal law; constitute an undue burden on interstate commerce and a deprivation of property without due process of law; constitute an unlawful and unauthorized exercise of power under Texas law; and, amount to an arbitrary and capricious action, unsupported by substantial evidence.
The Railroad Commission timely answered, and on October 1, 1986, the Plaintiffs filed their motion for partial summary judgment. Plaintiffs' motion seeks summary judgment on four (4) grounds alleged in their original complaint. They allege that 16 T.A.C. §§ 5.617, 5.619 and 5.620(b) are specifically preempted by federal law and regulation. Specifically, they argue that the FRA has completely occupied the area of regulation addressed by sections 5.619 and 5.620(b). Further, they allege the subject matter of section 5.617 has been totally preempted by the Locomotive Boiler Inspection Act, 45 U.S.C. § 23 (1986). Second, Plaintiffs allege that sections 5.616-5.620 are preempted by 45 U.S.C. § 434, in that they have state-wide application and therefore fail to address a local safety hazard. Third, Plaintiffs argue that 45 U.S.C. § 434 preempts sections 5.619 and 5.620(b) because each creates an *620 undue burden on interstate commerce. Finally, Plaintiffs contend that sections 5.619 and 5.620(b) create an undue burden on interstate commerce outside the context of 45 U.S.C. § 434.
The Defendants' response to Plaintiffs' motion was to be filed with the Court on October 16, 1986. The Defendants, however, filed a Motion for Continuance that specifically plead that the Defendants lacked the requisite knowledge to controvert certain issues by affidavit. Defense counsels' appended affidavit stated that the Defendants needed to take depositions and conduct other discovery before they could fully respond. Plaintiffs opposed the motion and moved for a temporary restraining order noting that the compliance date set forth in the subject regulations was October 25, 1986. The Defendants replied that while the "Commission cannot agree to the Temporary Restraining Order, the Commission does not at this time contest entry of the requested TRO." Thereafter, the Court considered the application in light of the Defendants' response and entered a Temporary Restraining Order on October 23, 1986. The following day the Court granted the Defendants' Motion for Continuance and ordered that Defendants respond to the Plaintiffs' Motion for Partial Summary Judgment on or before November 5, 1986.
The Defendants' response was timely filed and addressed most of the issues raised by Plaintiffs. The record reflects that in preparation of their response the Defendants took no depositions, did not attempt to take depositions, and propounded no discovery to Plaintiffs despite the protestation in their Motion for Continuance. Further, despite an absence of "requisite personal knowledge to support a sworn affidavit," Defendants did submit controverting affidavits.
The Defendants' response consisted of an Opposition to Plaintiffs' Motion for Partial Summary Judgment, and a Motion for Dismissal Under Rules 12(b) and 12(c) and for Summary Judgment. The Defendants' Motion to Dismiss alleges that the Plaintiffs lack standing to bring this action, no case or controversy exists, the action is not ripe for adjudication, no federal question jurisdiction exists, and that Pullman abstention is appropriate in this case. The Court will first address these threshold jurisdictional issues.

II. JURISDICTION
The Plaintiffs' original complaint states that "[t]he jurisdiction of this Court is based upon a federal question, and is invoked pursuant to 28 U.S.C. § 1331 (Supp. 1986), 28 U.S.C. § 2201 (Supp.1985) and 45 U.S.C. § 421-441 (1972 and Supp.1986)." Section 1331 confers original jurisdiction on district courts to adjudicate "all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331 (1986). Plaintiffs' complaint in this case invokes the Supremacy Clause and the Commerce Clause of the United States Constitution, and specific provisions of the Federal Railroad Safety Act and the Locomotive Boiler Inspection Act as bases for their claims.
Parties that assert federal question jurisdiction need not prove in advance that they will ultimately prevail on the merits of their federal claims. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). "Rather, the party asserting jurisdiction need only advance plausible, colorable claims that `arise under' federal law." Rollins Environmental Services, Inc. v. Parish of St. James, 775 F.2d 627, 631 (5th Cir.1985). In short, there must be a case or controversy. A case or controversy exists when "the conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract."[1]Railway Mail *621 Ass'n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945); e.g., KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922, 927 (5th Cir.1983). The imminence of the harm, the adversariness of the parties' positions, and the reality of injury to the Plaintiffs are all factors to be considered in determining whether a question is abstract. KVUE, 709 F.2d at 927. An action, however, may arise under federal law when "in order for the Plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicability to his case of a proposition of federal law." Franchise Tax Board v. Construction Laborers Trust, 463 U.S. 1, 9, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). In fact, the Supreme Court has stated that a "plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is preempted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 2899 n. 14, 77 L.Ed.2d 490 (1983); Braniff International, Inc. v. Florida Public Service Comm'n, 576 F.2d 1100, 1105 (5th Cir. 1978).
In order to avoid dismissal under FED.R.CIV.P. 12, the issue presented cannot be insubstantial, i.e., obviously without merit or foreclosed by prior decisions. New Orleans Public Service, Inc. v. City of New Orleans, 782 F.2d 1236, 1241 (5th Cir.1986); In re Carter, 618 F.2d 1093, 1103 (5th Cir.1980), cert. denied, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). If there is "any foundation to the claim, federal jurisdiction exists." Meason v. Bank of Miami, 652 F.2d 542, 547 (5th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1428, 71 L.Ed.2d 649 (1982). Further, Plaintiffs must have standing to present that claim. Plaintiffs must have "allege[d] such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); accord, Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978); Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968); O'Hair v. White, 675 F.2d 680, 686 (5th Cir.1982). Thus, Plaintiffs must demonstrate that they have suffered some threatened or actual injury from an allegedly illegal action. Id. (citing Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975)).
The Plaintiffs' complaint alleges seven causes of action. The first three contain their federal preemption allegations; the fourth and fifth allege federal constitutional violations, the sixth cause states an action under Texas law, and the last cause complains of arbitrary and capricious state action. It is apparent to the Court that in light of the principles set forth above, this case involves claims that clearly present a federal question. The Court finds that this controversy is a real and substantial dispute between adverse parties; it is neither hypothetical nor abstract. Moreover, it is clear that the Plaintiffs have alleged a threatened or actual injury from alleged illegal activity of the Defendants, and therefore have standing to assert these claims. Accordingly, this Court's jurisdiction over six of Plaintiffs' seven causes has been properly invoked pursuant to 28 U.S.C. §§ 1331 and 2201. Shaw, 463 U.S. at 96 n. 14, 103 S.Ct. at 2899 n. 14; Rollins, 775 F.2d at 631; KVUE, 709 F.2d at 927; Braniff, 576 F.2d at 1105. The Court has pendent jurisdiction over Plaintiffs' remaining claim, *622 brought under Texas law, pursuant to United Mineworkers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
The Defendants' reliance on the dicta of Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952) for the proposition that no case or controversy exists in this action, is at best, misplaced. In Wycoff, the Court stated: "Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine if there is federal question jurisdiction in the District Court...." Id. at 248, 73 S.Ct. at 242. The Fifth Circuit addressed Wycoff in Braniff International, Inc. v. Florida Public Service Commission, 576 F.2d 1100 (5th Cir.1978). The Court noted that several circuits had relied upon Wycoff for the proposition that all declaratory actions based upon federal preemption were improper. Braniff, 576 F.2d at 1104-05. The Court, however, declined to adopt this rule and held:
where a party seeks injunctive and declaratory relief based upon the unconstitutionality of a state statute, and where there are no other concrete impediments to a proper exercise of federal-question jurisdiction, the mere fact that the constitutional claims might be raised before a state administrative body charged with enforcement of the statute does not alone deprive the court of jurisdiction.
Id. at 1106 (citations omitted). Accordingly, this Court is of the opinion that Wycoff does not require dismissal of this action.

III. ABSTENTION
Defendants also allege that this Court should abstain from this action pursuant to Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Before a federal court can abstain from the exercise of federal jurisdiction under Pullman, the Court must find that the case presents a "difficult, obscure, or unsettled issue of state law, the resolution of which could eliminate or substantially narrow the scope of the federal constitutional issue." Nissan Motor Corp. v. Harding, 739 F.2d 1005, 1008 (5th Cir.1984) (citing Pullman, 312 U.S. at 496, 498-99, 61 S.Ct. at 643, 644); O'Hair v. White, 675 F.2d 680, 692 (5th Cir.1982) (en banc). Abstention is the exception rather than the rule. Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). This action presents no difficult, obscure or unsettled issues of state law, the resolution of which could eliminate or substantially narrow the scope of the constitutional issues presented by the Plaintiffs. In short, abstention in this case is wholly inappropriate and would amount to an abuse of discretion.

IV. PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Under Federal Rule of Civil Procedure 56(c), summary judgment is to be granted if the record reveals no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. In deciding this question the Court should view the evidence in the light most favorable to the party resisting summary judgment and should indulge all reasonable inferences in favor of that party. Pharo v. Smith, 621 F.2d 656, 664 (5th Cir.1980).

(1) Preemption

The Supremacy Clause, U.S. CONST. art. VI, cl. 2, nullifies state laws that "interfere with or are contrary to" federal law. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985) (quoting Gibbins v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.)); Rollins, 775 F.2d at 634. Congress is authorized to absolutely preempt state and local rulemaking authority in a particular field. Pacific Gas & Electric Co. v. State Energy Resources Comm'n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1721-1722, 75 L.Ed.2d 752 (1983); Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, *623 1309, 51 L.Ed.2d 604 (1977). "Even where Congress has not entirely displaced state and local rulemaking in a specific area, those lower laws are preempted to the extent that they conflict with federal law. Where a lower law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,' Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941), it is preempted." Rollins, 775 F.2d at 634. Congressional intent to preempt state law in a given area may be inferred from the existence of a comprehensive scheme of federal regulation. Hillsborough, 105 S.Ct. at 2375. Preemption is also inferred when the area of law is one in which "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Finally, state laws can be preempted by federal regulation as well as by federal statute. Hillsborough, 105 S.Ct. at 2375 (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 2700, 81 L.Ed.2d 580 (1984)).
In the Federal Railroad Safety Act, 45 U.S.C. §§ 421-441 (1986), Congress specifically declared that regulations relating to railroad safety shall be nationally uniform to the extent practicable.
The Congress declares that laws, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.
45 U.S.C. § 434 (1986). Thus, when the Secretary of Transportation promulgates rules or regulations that cover rail safety, a state may adopt or continue in force similar laws, rules or regulations only
1) when necessary to eliminate or reduce an essentially local safety hazard, and
2) when not incompatible with any federal provision, and
3) when not creating an undue burden on interstate commerce.
A state must establish each of the elements of this narrow exception to preemption if its rules or regulations that cover a federally addressed railroad safety matter are to survive preemption. Id.; National Ass'n of Regulatory Utilities Commissioners v. Coleman, 542 F.2d 11, 13 (3rd Cir.1976).
Thus, if no federal regulation covers a rail safety matter, states are free to regulate the area. By the same token, if federal regulation completely occupies a rail safety matter, all state regulation is preempted. If federal regulations address a rail safety matter but do not wholly occupy the field, state regulation is permitted when the three-prong test of section 434 is met.
Obviously, the key inquiry to a resolution of this dispute is to what extent the Federal Rail Safety Act has covered the subject matter of rail safety. This determination turns on the definition of "covering the subject matter," a key phrase contained in section 434. The phrase is not defined in the statute; however, an analysis of the Congressional intent in enacting section 434 sheds light on the meaning of the phrase.
[The rail industry] has a truly interstate character calling for a uniform body of regulation and enforcement. It is a national system.... The integral operating parts of these companies cross many State lines. In addition to the obvious areas of rolling stock and employees, such elements as operating rules, signal systems, power supply systems, and communication systems of a single company *624 normally cross numerous State lines. To subject a carrier to enforcement before a number of different State administrative and judicial systems in several areas of operation could well result in an undue burden on interstate commerce.
H.R. REP. NO. 1194, 91st Cong., 2d Sess., reprinted in 1970 U.S. CODE CONG. & AD. NEWS 4104, 4110-11. Thus, it is clear that Congress intended to establish uniform national rail safety standards.
Various courts which have considered the phrase in the entire context of section 434, read it to provide a narrow exception to a broad preemption of state regulation in rail safety matters. National Ass'n of Regulatory Utilities Commissioners v. Coleman, 542 F.2d 11, 13 (2d Cir.1976); Donelon v. New Orleans Terminal Co., 474 F.2d 1108 (5th Cir.1973); Consolidated Rail Corp. v. Pennsylvania Public Utility Comm'n, 536 F.Supp. 653, 657 (E.D.Penn. 1982); Atchison, Topeka & Santa Fe Railway Co. v. Illinois Commerce Commission, 453 F.Supp. 920, 926 (N.D.Ill,1977). In short, the statute evinces a total preemptive intent in rail safety matters, with very limited exceptions. The Court must now determine whether the state regulations in issue fit within this narrow exception.

1) Walkways, 16 T.A.C. § 5.619

Section 5.619 requires the construction of walkways in areas on or immediately adjacent to the roadbed. Section 5.619 states:
(b) Where walkways shall be required. Walkways shall be located along tracks in yards, terminals, and at other points where switching, car spotting, or train or car inspections may reasonably be expected to be performed during the normal course of business.
Id. Walkway surface, slope and width specifications are established in subsections (c), (d) and (e). Subsections (f), (g), (h) and (i) detail specific locations where walkways are required, i.e., at switching, inspection and car spotting areas; at derails; and, at trackside warning devices. By definition, these walkways shall be constructed "alongside a railroad track or railroad switch...." 16 T.A.C. § 5.619(a).
The FRA has adopted comprehensive regulations that include specifications for the roadbed, track geometry and track structure. 49 C.F.R. part 213 (1985). Specifically, 49 C.F.R. part 213, subparts B, C and D set forth the requirements of roadbed structure, including drainage requirements, vegetation control, track gauge, alignment, curve, elevation and surface, ballast, cross ties, defective rails, railend mismatches, rail joints, tie plates, rail fastenings, turnouts and track crossings, switches, frogs, spring rail frogs, selfguarded frogs and frog guard rails, and guard faces. It is apparent that the roadbed area is extensively regulated by the federal government. While the term "roadbed" is not defined in the federal regulations or section 5.619, the evidence before the Court establishes that the term commonly refers to the area adjacent to and under the tracks. See Velasquez v. Southern Pacific Transportation Co., 734 F.2d 216, 218 (5th Cir.1984). By definition, section 5.619 requires the construction of walkways alongside tracks or switches, i.e., on or in the roadbed. Moreover, the requirements of section 5.619 necessarily effect roadbed drainage capability and ballast requirements. Both matters are specifically covered by federal regulation, 49 C.F.R. 213, 103, .33. In short, 16 T.A.C. 5.619 attempts to regulate matters governed by existing federal regulation.[2]
Several courts have concluded that similar state walkway requirements are preempted, Norfolk and Western Railway *625 Co. v. Burns, 587 F.Supp. 161, 170 (E.D. Mich.1984); Black v. Seaboard System Railroad, 487 N.E.2d 468 (Ind.Ct.App. 1986); Black v. Baltimore and Ohio Railroad Co., 398 N.E.2d 1361, 1363 (Ind.Ct. App.1980). Most significantly, the Fifth Circuit has recognized that walkways are so integrated into the roadbed and track structure that all but FRA regulation is precluded. Velasquez, 734 F.2d at 217-18. In Velasquez, the Circuit Court considered a trial court jury instruction that OSHA regulations applied to a plaintiff railroad worker's injuries suffered on a railroad bridge walkway beside a yard track. The Court noted that the FRA had issued a policy statement that displaced OSHA regulations. The Court held:
The accident in the present case occurred on a walkway beside a track in a yard, and on a railroad bridge. The FRA policy statement provides that such area are not subject to OSHA regulations. It is not necessary that the FRA implement specific regulations for these area; an assertion of authority in a policy statement is sufficient to displace OSHA regulations.
Id. at 218.
The policy statement relied upon by the Velasquez Court states, in pertinent part:
Third, the OSHA regulations would not apply to ladders, platforms, and other surfaces on signal masts, centenary systems, railroad bridges, turntables, and similar structures or to walkways beside the tracks in yards or along the right-of-way. These are areas which are so much a part of the operating environment that they must be regulated by the agency with primary responsibility for railroad safety. Therefore, FRA will determine the need for and feasibility of general standards to address individual hazards relating to such surfaces, keeping in mind the requirement of proper clearances and the familiarity of employees with existing industry designs.
43 Fed.Reg. at 10587 (1978). This FRA policy statement applies to the Railroad Commission regulation of walkways as well as to OSHA regulation of walkways. The Railroad Commission has no more authority to regulate walkways than does OSHA, and is likewise preempted from regulating walkways.
Moreover, the FRA considered and rejected more specific regulation of walkway conditions and construction when considering the regulations set forth at 49 C.F.R. part 213. The uncontroverted evidence before the Court establishes that among the original rules proposed by the FRA was a rule that specifically addressed the safety of employees who worked within ten feet of the centerline of the track. 36 Fed.Reg. 11976 (1971) (to be codified at 49 C.F.R. at 213) (proposed June 23, 1971). The Congress of Railway Unions, as well as the states of Tennessee, Montana and California filed comments concerning the proposed rule. In addition, the National Transportation Safety Board submitted a special study to the FRA that considered the proposed rule. Most, if not all of the comments called for more specific regulation of the walkway area. The FRA considered the comments, deleted the proposed rule and let stand the current regulations of the roadbed and areas immediately adjacent thereto.
When the FRA failed to exercise its full authority over walkways, after full consideration of the options, their inaction constituted an affirmative ruling that specific walkway regulation was inappropriate. Ray v. Atlantic Richfield Co., 435 U.S. 151, 178, 98 S.Ct. 988, 1004, 55 L.Ed.2d 179 (1978). In Ray the Court stated:
The Court has previously recognized that `where failure of ... federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute,' States are not permitted to use their police power to enact such a regulation.
Id. (citing Napier v. Atlantic Coast Line Railroad Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926).
Moreover, the State's argument that section 5.619 is not preempted because *626 its objective is different than that of the federal regulation, cannot survive. The objective of various state regulations is irrelevant in the determination of federal preemption. The proper inquiry "is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives." Florida Lime and Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). It is apparent that section 5.619 cannot coexist with current federal regulation without impairing federal superintendence of the field.
Consequently, section 5.619 is federally preempted by the Comprehensive Regulations Act set out in 49 C.F.R. part 213.

2) Vegetation Control, 16 T.A.C. § 5.620(b)

Section 5.620(b) provides:
(b) Each railroad corporation shall control vegetation on its right-of-way (except for the roadbed and area immediately adjacent thereto) for a distance of 500 feet each way from every public grade crossing so that it does not obscure the view of approaching trains to vehicular highway traffic.
Id. Federal vegetation control regulations are established at 49 C.F.R. 213.37 which states:
Vegetation on railroad property which is on or immediately adjacent to roadbed must be controlled so that it does not
(a) Become a fire hazard to track-carrying structures;
(b) Obstruct visibility of railroad signs and signals;
(c) Interfere with railroad employees performing normal trackside duties;
(d) Prevent proper functioning of signal and communication lines; or
(e) prevent railroad employees from visually inspecting moving equipment from their normal duty stations.
Id.
The federal regulation clearly and specifically addresses vegetation control "on or immediately adjacent to roadbed." Section 5.620(b) attempts to avoid a conflict with the federal regulation in two ways: by regulating vegetation control on the railroad right-of-way "except for the roadbed and areas immediately adjacent thereto," and by stating its purpose to avoid obstruction of motorists' view of approaching trains. Neither distinction saves the regulation from preemption. First, the railroad right-of-way is an area immediately adjacent to the roadbed. No contrary definiton exists partially because any contrary definition would defy logic. In fact, the record reflects that the Defendants themselves cannot differentiate between the "right-of-way" and "property immediately adjacent to roadbed." Both areas are the same.
Further, the fact that the federal regulation addresses vegetation control with an objective different than that of the state is of no import. See Paul, 373 U.S. at 144-45, 83 S.Ct. 1218-19; Napier, 272 U.S. at 613, 47 S.Ct. at 210. Moreover, the FRA expressly addressed vegetation control on right-of-ways from the perspective of motorist visibility during the deliberation and public comment period that proceeded the adoption of the federal regulation. The Washington Utilities and Transportation Commission and the National Transportation Safety Board both recommended that vegetation be controlled to ensure railroad grade crossing visibility. The FRA considered both proposals and rejected both proposals. The FRA consideration and rejection of such rules acts as an affirmative ruling that such a rule is inappropriate. Ray, 435 U.S. 178, 98 S.Ct. at 1004. 16 T.A.C. § 5.620(b) is specifically preempted by federal regulation.

3) Locomotive Equipment, 16 T.A.C. § 5.617

Section 5.617 states:

Safety Equipment. Each railroad corporation shall provide and maintain a first aid kit and an operable fire extinguisher in a plainly designated, accessible *627 location on each of its cabooses and locomotives.
Id. The Locomotive Boiler Inspection Act, 45 U.S.C. § 23 (1986) wholly preempts the subject matter of locomotive equipment. Napier, 272 U.S. at 613, 47 S.Ct. at 210; Consolidated Rail Corp. v. Pennsylvania Public Utility Comm'n, 536 F.Supp. 653, 656-57 (E.D.Pa.1982), aff'd mem., 696 F.2d 981 (3rd Cir.1982), aff'd mem., 461 U.S. 912, 103 S.Ct. 1888, 77 L.Ed.2d 280 (1983).
We hold that state legislation is precluded, because the Boiler Inspection Act, as we construe it, was intended to occupy the field. The broad scope of authority conferred upon the Commission leads to that conclusion. Because the standard set by the Commission must prevail, requirements by the states are precluded, however commendable or however different their purpose.
Napier, 272 U.S. at 613, 47 S.Ct. at 210. Further, the proscription against state regulation of locomotive equipment "extends to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances." Napier, 272 U.S. at 611, 47 S.Ct. at 209. Whether or not the equipment prescribed by the state contributes to the operation of the locomotive is irrelevant; 16 T.A.C. § 5.617 is preempted by the Locomotive Boiler Inspection Act.

4) Preemption by Failure to Address Local Hazard

The Plaintiffs' second cause of action alleges that 16 T.A.C. 5.616-5.620 are preempted because they fail to address local safety hazards and are incompatible with existing federal law, rule, regulation, order or standard. States may regulate rail safety matters only when all three prongs of the preemption test established in 45 U.S.C. § 434 are satisfied. Thus, once the Secretary of Transportation adopts a rule, regulation, order or standard that does not wholly occupy the subject matter, the State may adopt laws, rules or regulations covering the same subject matter only: when necessary to eliminate or reduce an essentially local safety hazard; when not incompatible with any federal law, rule, regulation, order or standard; and when not creating an undue burden or interstate commerce. E.g., Donelon v. New Orleans Terminal Co., 474 F.2d 1108, 1112 (5th Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973). The language of the statute clearly demonstrates that all three prongs must be established or the state regulation will be preempted. 45 U.S.C. § 434; see Donelon, 474 F.2d at 1112.
Congressional intent regarding the first prong, local hazards, is clear from the House Reports on the 1970 Railroad Safety Act:
The purpose of this latter provision is to enable the States to respond to local situations not capable of being adequately encompassed within uniform national standards. The States will retain authority to regulate individual local problems or reduce essentially local railroad safety hazards. Since these local hazards would not be Statewide in character, there is no intent to permit a State to establish Statewide standards superimposed on national standards covering the same subject matter.
H.R. REP. NO. 1194, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. and Ad. News 4104, 4117.
Courts that have addressed the issue have consistently held that the first prong of the test does not authorize imposition of statewide standards. E.g., Coleman, 542 F.2d at 14-15 (state accident reporting requirements, largely duplicative of similar federal requirements, preempted due to statewide impact); Consolidated Rail Corp., 536 F.Supp. at 658 (regulation that required speed recorders preempted because it had statewide impact); Atchison, Topeka & Santa Fe, 453 F.Supp. at 926 (state commodities regulations preempted due to statewide impact).
The Defendants do not contest that 16 T.A.C. § 5.616-5.620 have statewide impact. The Defendants admit that the subject matter of those regulations has been addressed by federal law, rule, regulation, *628 order or standard. Moreover, "the Commission does not attempt to assert that the rules meet the three elements of the second test in 45 U.S.C. § 434."
The Court has already determined that 16 T.A.C. §§ 5.617, 5.619 and 5.620(b) are wholly preempted. In addition, it is readily apparent that these regulations necessarily have statewide impact and therefore do not meet the first prong of the test. 16 T.A.C. § 5.616 and 5.618 impose state filing requirements for various reports, codes, and a wayside detector map. The record reflects that specific Federal regulations already specify which documents railroads must file with regulatory agencies. Consequently, 16 T.A.C. §§ 5.616-5.620 are preempted because they fail to address local safety hazards and are incompatible with existing federal law, rule, regulation, order or standard.
The Court has already determined that 16 T.A.C. §§ 5.616-5.620 are preempted for the reasons stated above. Therefore, the Court need not address the Plaintiffs' remaining arguments on the their motion for partial summary judgment. The Court would note, however, that this case represents the fourth time in as many years that courts have been forced to address federal preemption of rules or regulations promulgated by various Texas agencies including the Texas Railroad Commission; rules and regulations that are clearly preempted. State of Texas v. United States, 730 F.2d 409 (5th Cir.), modified, State of Texas v. United States, 749 F.2d 1144 (5th Cir.) cert. denied, 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d 642 (1984); Missouri Pacific R.R. Co. v. Railroad Comm'n, 653 F.Supp. 617 (W.D.Tex.1986); Burlington Northern R.R. Co. v. Public Utility Comm'n, 637 F.Supp. 584 (W.D.Tex.1986) (consolidated).
Why the Railroad Commission continues to expend its resources in such idle undertakings remains a mystery to this Court. When one considers the existing fiscal problems facing the State of Texas, it would appear that the resources of the Commission and the Attorney General's Office would best be spent in more meaningful and positive pursuits.
Accordingly, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Defendants' Motion to Dismiss and Motion for Summary Judgment are not meritorious and are hereby DENIED;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiffs' Motion for Partial Summary Judgment is hereby GRANTED IN PART. Specifically, the Court finds that the United States of America acting through the Federal Railroad Administration and by the Federal Railroad Safety Act, 45 U.S.C. §§ 421-441 (1972 and Supp.1986), and by the Locomotive Boiler Inspection Act, 45 U.S.C. § 22 et seq. (1972) has totally preempted and wholly occupied the subject matter of locomotive equipment, track and roadbed structure and vegetation control. Accordingly, any state action in those areas is preempted, and specifically 16 T.A.C. §§ 5.617, 5.619 and 5.620(b) are preempted. Further, the Court finds that none of the 16 T.A.C. §§ 5.616-5.620 address an essentially local safety hazard, but rather all are statewide in application and incompatible with federal regulation. Accordingly, 16 T.A.C. §§ 5.616-5.620 are entirely preempted by 45 U.S.C. § 434.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that 16 T.A.C. §§ 5.617, 5.619 and 5.620(b) are void as specifically preempted by federal regulatory occupation of their subject matter.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that 16 T.A.C. §§ 5.616-5.620 are void as federally preempted for failure to address local safety hazards.
NOTES
[1]  Traditional notions of ripeness and justiciability have been almost inextricably intertwined in recent decisions. Peyote Way Church of God v. Smith, 742 F.2d 193, 198-99 (5th Cir.1984). C. WRIGHT, A. MILLER & E. COOPER, Federal Practice and Procedure § 3529 n. 23 (1984 and Supp.1986). Suffice to say that the pleadings on file demonstrate that Plaintiffs have presented a ripe claim. Perhaps the best demonstrative evidence of sufficient immediacy in this case was that presented in support of the Court's determination that Plaintiffs' application for a temporary restraining order was meritorious; this controversy is clearly ripe. Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972).
[2]  The affidavit testimony and other evidence before the Court support previous court and administrative rulings that walkways would have to be structurally integrated into the track roadbed. In this respect, the Court is of the opinion that Michael McGinley's expert testimony in this regard is credible. Mr. McGinley is a registered Texas professional engineer with twenty years of experience in railroad track engineering, design, construction and maintenance. The Court finds that Robert Farnsworth's affidavit testimony is insufficient to meet, rebut or even create a fact question as to the conclusions of Mr. McGinley.