UNITED STATES OF AMERICA

788.9

"Preparing *** logs."

SECTION 788.1 STATUTORY PROVISIONS Section 13(a) (15) of the Fair Labor Standards Act of 1938 provides an exemption from the minimum wage and overtime requirements of the Act, as follows:

The provisions of sections 6 and 7 shall not apply with respect to *** any employee employed in planting or tending trees, cruising, surveying, or felling timber, or in preparing or transporting logs or other forestry products to the mill, processing plant, railroad, or other transportation terminal, if the number of employees employed by his employer in such forestry or lumbering operations does not exceed twelve. SECTION

DIS

NOT 788.2 MATTERS CUSSED IN THIS PART The exemption in section 13(a) (15) of the Act need not be considered unless the employee is "engaged in commerce or the production of goods for commerce" or is employed in an "enterprise engaged in commerce or in the production of goods for commerce," as those words are defined in the act, so as to come within the general scope of sections 6 and 7. The principles of coverage are discussed in Part 776 of this chapter and the discussion will not be repeated in this part. Neither does this part discuss the exemption provided in section 13 (a) (6) and in section 3(f) which in

cludes forestry or lumbering operations incident to or in conjunction with certain farming operations (see sections 780.160 to 780.164 of this chapter).

SECTION 788.3 PURPOSE OF THIS PART

The purpose of this part is to make available in one place the views of the Department of Labor with respect to the application and meaning of the provisions of section 13(a)(15) of the Act which will provide "a practical guide to employers and employees as to how the office representing the public interest in enforcement of the law will seek to apply it" (Skidmore v. Swift & Co., 324 U.S. 134).

SECTION 788.4 SIGNIFICANCE OF OFFICIAL INTERPRETATIONS

The interpretations contained in this part indicate, with respect to section 13(a) (15) of the Act which refers to small forestry or lumbering operations, the construction of the law which the Secretary of Labor and the Administrator believe to be correct and which will guide them in the performance of their duties under the Act unless and until they are otherwise directed by authoritative decisions of the courts or conclude, upon reexamination of an interpretation, that it is in

correct.

SECTION 788.5 RELIANCE ON OFFICIAL

INTERPRETATIONS

Under section 10 of the Portal-to-Portal Act of 1947 (29 U.S.C. 259), official interpretations issued under the Fair Labor Standards Act of 1938 may, under certain circumstances, be controlling in determining the rights and liabilities of employers and employees. The interpretations of the law contained in this part are official interpretations on which reliance may be placed as provided in section 10 of the Portal-to-Portal Act, so long as they remain effective and are not modified, rescinded, or determined by judicial authority to be incorrect. However, the omission to discuss a particular problem in this part or in the interpretations supplementing it should not be taken to indicate the adoption of any position by the Secretary of Labor or the Administrator with respect to such problem or to constitute an administrative interpretation or practice or enforcement policy. SECTION 788.6 SCOPE OF THE SECTION

13(a)(15) EXEMPTION

By its terms, the section 13 (a) (15) exemption is limited to those employed in the named operations. These are terms of ordinary speech and mean what they mean in ordinary intercourse in this context. These operations include the incidental activities normally performed by persons employed in them but do not include mill operations.

SECTION 788.7 "PLANTING OR TENDING TREES"

Employees employed in "planting or tending trees" include those engaged in seeding, planting seedlings, pruning, weeding, preparing firebreaks, removing rot or rusts, spraying, and similar operations when the object is to bring about, protect, or foster the growth of trees. "Tending trees" would also include watching the timberland to guard against thefts and fire (Gatlin Lumber Co. v. Mitchell, 287 F. (2d) 76, cert. den. 366 U.S. 963).

SECTION 788.8 "CRUISING, SURVEYING,
OR FELLING TIMBER"

Employees engaged in "cruising *** timber" include all those members of a field crew whose purpose is to estimate and report on the volume of marketable timber. Employees engaged in "surveying ** timber" include the customary mem

bers of a crew accomplishing that function such as the chainmen, the transit men, the rodmen, and the axmen who clear the ground of brush or trees in order that the transit men may obtain a clear sight. Similarly, the usual members of a crew which goes to the woods for the purpose of felling timber and preparing and transporting logs are engaged in operations described in the exemption. Typically included, when members of such a crew, are fellers, limbers, skidders, buckers, loaders, swampers, scalers, and log truck drivers. SECTION 788.9 "PREPARING **LOGS" Preparing logs includes, where appropriate, removing the limbs and top, cutting them into lengths, removing the bark, and splitting or facing them when done at the felling site, but does not include such operations when done at a mill. Employees engaged in sawmill, tie mill, and other operations in connection with the processing of logs, such as the production of lumber, are not exempt.

*

OTHER FORESTRY PRODUCTS" As used in the exemption, "other forestry products" means plants of the forest and the natural properties or substances of such plants and trees. Included among these are decorative greens such as holly, ferns, and Christmas trees, roots, stems, leaves, Spanish moss, wild fruit, and brush. Gathering and preparing such forestry products as well as transporting them to the mill, processing plant, railroad, or other transportation terminal are among the described operations. Preparing such forestry products does not include operations which change the natural physical or chemical condition of the products or which amount to extracting as distinguished from gathering, such as shelling nuts, or mashing berries to obtain juices. SECTION 788.11 "TRANSPORTING

[SUCH] PRODUCTS TO THE MILL,
PROCESSING PLANT, RAILROAD, OR
OTHER TRANSPORTATION TERMI-
NAL"

The transportation or movement of logs or other forestry products to a "mill, processing plant, railroad, or other transportation terminal" is among the described operations. Loading and unloading, when performed by employees employed in the named operations, are included as exempt opera

tions. Loading logs or other forestry products onto railroad cars or other transportation facilities for further shipment if performed as part of the exempt transportation will be considered a step in the exempt transportation (Woods Lumber Co. v. Tobin, 199 F (2d) 455 (C.A. 5)). However, any other loading, transportation, or other activities performed in connection with the logs or other forestry products after they have been unloaded at one of the described destinations is not exempt. "Other transportation terminal" refers to any place where there are established facilities or equipment for the shipment or transportation of logs or other forestry products. Motor carrier yards, docks, wharves, or similar facilities are examples of other transportation terminals, but the place where logs are picked up by contract motor carriers or haulers at the site of the woods operations for transportation to the mill, processing plant, or railroad is not such a terminal. SECTION 788.12 LIMITATION OF EXEMP

TION TO SPECIFIC OPERATIONS IN WHICH "NUMBER OF EMPLOYEES *** DOES NOT EXCEED TWELVE" Regardless of his duties, no employee is exempt under section 13 (a) (15) unless, "the number of employers employed by his employer in such forestry or lumbering operations does not exceed twelve."

The determination of the number of employees employed in the named operations is to be made on an occupational and a workweek basis. Thus the exemption will be available in one workweek when twelve or less employees are employed in the exempt operations and not in another workweek when more than that number are so employed. For a discussion of the term "workweek" see Part 778 of this chapter. The exemption will not be defeated, however, if one or more of the twelve employees so engaged is replaced during the workweek, for example, by reason of illness. But if additional employees are employed during the workweek in the named operations, even if they work on a different shift, the exemption would no longer be available if the total number exceeds twelve. Similarly, all of an employer's employees

employed in any workweek in the named operations must be counted in the twelve regardless of where the work is performed or how it is divided. Thus if an employer employs six employees in felling timber and preparing logs at one location and seven at another location in those operations, the exemption would not be available. Similarly, if he employs ten employees in such operations and three other employees in transportation work as discussed in section 788.11, the exemption could not apply. Under such circumstances he would be employing more than twelve employees in the named operations. The fact that some of these employees may not be engaged in commerce or the production of goods for commerce or may be engaged in other exempt operations will not affect these conclusions (Woods Lumber Co. v. Tobin, 199 F (2d) 455 (C.A. 5). Except for replacements, therefore, all of an employer's employees employed in the named operations in a workweek must be counted, regardless of where they perform their work or in which of the named operations or combinations of such operations they are employed. The length of time an employee is employed in the named operations during a workweek is also immaterial for the purpose of applying the numerical limitation. Thus, even if an employee would not himself be exempt because he is engaged substantially in nonexempt work (see section 788.17), nevertheless, if, as a regular part of his duties, he is also engaged in the operations named in the exemption he must be counted in determining whether the twelve employee limitation is satisfied.

SECTION 788.14 NUMBER EMPLOYED IN OTHER THAN SPECIFIED OPERATIONS

The exemption is available to an employer, however, even if he has a total of thirteen or more employees, if only twelve of them or less are employed in the named operations. Thus if such an employer employs only twelve employees in the named operations and others in operations not named in the exemption, such as sawmill operations, the exemption is not defeated because of the fact that he employs more than twelve employees altogether. It will not apply, however, to those engaged in the operations not named in the exemption.