Log truck drivers are covered by Wage Order 9, not Wage Order 16

STATE OF CALIFORNIA GRAY DAVIS, Governor

DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
LEGAL SECTION
320 W. 4th Street. Suite 430
Angeles, CA 90013
(213) 897-1511

ANNE STEVASON. Acting Chief Counsel

                                     December 3, 2001



      Frank A. Sanderson
      TOC Management Services
      P.O. Box 493007
      Redding, California 96049


                 Re: Exclusion of Log Truck Drivers from IWC Order 16


      Dear Mr. Sanderson:


           Please excuse our delay in responding to your letters of
      September 28, 2001 and November 5, 2001 concerning the issue of
      whether log truck drivers are covered by Industrial Welfare
      Commission Order 16-2001, or by Order 9-2001.

           We start with the express language of the wage orders. The
      applicability of Order 16 is set out in paragraph 1 of that Order
      as follows: "This order shall apply to all persons employed in the
      on-site occupations of . . . logging work for which a timber
      operator's license is required pursuant to California Public
      Resources Code Sections 4571 through 4586. ..." Paragraph 2(K)
      defines "logging occupations" as "any work for which a timber
      operator's license is required pursuant to California Public
      Resources Code Sections 4571-4586, including the cutting or
      removal or both of timber or other solid wood forest products,
      including Christmas trees, from timberlands for commercial
      purposes, together with all work that is incidental thereto,
      including but not limited to construction and maintenance of
      roads, fuel breaks, fire breaks, stream crossings,, landings, skid
      trails, beds for the falling of trees, and fire hazard
      abatement."1 Returning to Paragraph 1, subsection (F) provides
      that Order 16 "supersedes any industry or occupational order for
      those employees employed in occupations covered by this order."



            1 This definition parallels the definition of "timber operations" found at
      Section 4527 of the Public Resources Code, and under section 4571 of that Code,
      no person shall engage in such operations without a timber operators license. The
      Department of Forestry and Fire Protection is responsible for licensing timber
      operators.




                                                                               2001.12.03

Page 2

December 3, 2001
Page 2

  Prior to the adoption of Order 16-2001, log truck drivers

(like any other commercial vehicle drivers) were unquestionably
covered by Order 9, which applies to all persons employed in the
"transportation industry," defined to include: "any industry,
business or establishment operated for the purpose of conveying
persons or property from one place to another whether by rail,
highway, air, or water, and all operations and services in
connection therewith . . ." (Order 9-2001, para. 2 (N) ) But in
view of the breadth of the "supersession provision" of paragraph
1(F) of Order 16-2001, continued coverage under Order 9 would
require a finding that log truck drivers are not employed in an
occupation covered by Order 16.

 By letter dated July 27, 2001, we sought advice from the

California Department of Forestry and Fire Protection ("CDF") as
to the following questions:

 1. Whether the hauling of logs from the area of logging

operations to an off-site lumber mill or co-generation plant
constitutes the "removal ... of timber . . . from timberlands"
or "work that is incidental thereto," within the meaning of
section 4527 of the Public Resources Code, so as to require
licensure under section 4571?

 2. Whether the answer to question 1, above, depends on

whether the hauling is performed by the same business that cut
the timber, as opposed to an independent trucking company?

 3. And if the work described in question 1, above, does not

fall within the meaning of "timber operations" under section
4527, what operations are covered by the phrase "removal ... of
timber . . . from timberlands" or "work that is incidental
thereto," so as to require licensure under section 4571.
The CDF responded to us by letter dated October 1, 2001,
stating that "the isolated act of trucking in and of itself does
not require an individual to be a licensed timber operator (LTO).
This is not dependent on whether the hauling is performed by the
same business that performs the actual logging company, as opposed
to an independent trucking company." According to the CDF, "the
phases of logging that constitute "timber operations" under Public
Resources Code section 4527 "include, but [are] not necessarily
limited to, the tree cutting, log skidding [getting the log from
the cut to the truck], slash treatment, erosion control,
silviculture, and road building." The CDF distinguished these
operations from driving a log truck, observing *[w]hen logs have
been loaded on to the log truck, we believe the need for a license
has ceased. . . . We do not see how licensing log truckers would
further the purposes of the [Forest Practice] Act."

                                                          2001.12.03

Page 3

Page 3
December 3, 2001

 To ensure that the IWC, when it adopted Order 16-2001, shared

the CDF's view as to whether log truck drivers fall within the
definition of "logging operations," we looked to the Statement as
to the Basis of Order 16. Although the Statement does not provide
conclusive guidance on this issue, it is interesting to note that
the Statement contains this language in discussing the
applicability of the Order: "The IWC notes that this Order is
intended to cover construction workers regardless of whether or
not their employers are required to possess a contractor's
license." In contrast to this expansive coverage of on-site
construction workers, the Statement notes that the Order covers
"logging work for which a timber operator's license is required
pursuant to California Public Resources Code §§4571 through 4586,
whether said workers are paid on a time, piece rate, commission or
other basis."

 Finally, we looked at the Report of the Wage Board for On-

Site Construction, Drilling, Logging and Mining Industries,
covering the proceedings of this Wage Board held on June 20 and
July 20, 2000. This is the Report that was presented to the IWC,
that led to the IWC's adoption of Order 16-2001. The Wage Board
proposal regarding paragraph 1 ("applicability") and paragraph 2
("definitions") of Order 16 was approved by the Board in a 17 to 4
vote. The above-described provisions now found in Order 16-2001
were first debated over and approved by the Wage Board.
Consequently, the Wage Board's discussion of this issue is
critical in understanding the IWC's intent, and thus, in
determining how the Division of Labor Standards Enforcement (DLSE)
should be enforcing the wage order.

 During the Wage Board discussion, Employer Representative

Mike Anderson clarified that the definition of "logging
occupations" applies only to cutting and removal of trees on-site,
not to transportation or delivery from the site' of the logging
operations. Mr. Anderson noted that another wage order (Order 9)
would apply to any off-site transportation. Employee
Representative Scott Wetch stated that the intent was that Order
16 only apply to on-site occupations. The Board then agreed to
include the term "on-site" in the title of the wage order, so as
to make this intent clear.

 There can be no doubt, in view of this regulatory history,

that log truck drivers are covered by Wage Order 9-2001, not by
Order 16-2001. As such, these drivers are subject to the
exemption from overtime set out in paragraph 3(L) of Order 9-
2001.2 Please note, however, that these drivers would be covered
by all other sections of Order 9, including requirements for meal

  2 That exemption provides that the provisions of paragraph 3, including

daily overtime, are not applicable to drivers whose hours of service are regulated
by 49 CFR sections 395.1 to 391.13 or by 13 CCR section 1200, et seq.

Page 4

Page 4
December 3, 2001

periods and rest periods, and payment of wages for all hours
worked.

 As you are aware, during our investigation of this issue,

former chief counsel Miles E. Locker directed DLSE staff to
suspend all enforcement with regard to log truck drivers' overtime
claims, to the extent that such drivers are covered by the
drivers' exemption in Order 9. This letter will be circulated to
DLSE staff to ensure that any such pending claims are dismissed.

 Thank you for your interest in California wage and hour law.

Feel free to contact us with any other questions.

                                     Sincerely,




                                     Anne Stevason
                                     Acting Chief Counsel

AS/ml
CC : Stephen Smith
Arthur Lujan
Tom Grogan
Roger Miller
Greg Rupp
Nance Steffen
Bridget Bane, Executive Officer, IWC
Ed Ehlers, Associated California Loggers
Mike Anderson, Anderson Logging

                                                            2001.12.03