Sep 5

Fraud on the Firelines. How Complicit Are You in the Ongoing Illegal and Unethical, "Showing" Without Actually "Taking" Meal Periods Debacle on Wildland Fires ?

Fred J. Schoeffler and contributing authors

Views expressed to "the public at large” and "of public concern"

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The integrity of the upright guides them,

but the crookedness of the treacherous destroys them.

Proverbs 11:3 (NKJV)

I have no idea what the mind of a lowlife scoundrel is like, but I know what the mind of an honest man is like; it is terrifying.

Abel Hermant

A French novelist, playwright, essayist and writer,

and member of the Académie française.

No matter what Agency, Department, or Contractor you work for, how many wildland fires have you worked on where you were told by your supervisor or someone in the Finance Section to “show” a lunch break or meal period on your Crew Time Report (CTR), an official time document, even though you did not actually take one? And how many times did you comply with that administrative direction even though you worked right through that alleged "meal period," performing work - and therefore, not "completely relieved from duty" which is required by the relevant legal regulation(s)? Because you were directed to or you knew to do this to make up for that one-half hour; how many times did you “show” that supposed one-half hour break and then add on a half-hour at the end of your operational period to make it appear that you took one? How many times as a supervisor did you approve of and sign these timesheets for others knowing that what you signed was inaccurate? Probably more times than you can or care to remember? However, this author would hazard to say, you did it on virtually every wildland fire. How many of you knew of or were even aware that what you were being told and what you were doing and/or directing others to do was at bottom unethical and clearly illegal? Probably not very many of you because you were told to do it, right? Everyone else was doing it, right? You were merely following orders.

The Budget and Finance folks will love this one when this post finally gets around to them! To their delight, you've dutifully "shown" a half-hour meal period on your Crew Time Report (CTR) while you were still on the fireline, right? Therefore, that means that if you're on the fireline, then you're entitled to a half-hour Hazard Pay for each shift, right? So then, all of you are encouraged to file a Class Action Lawsuit in order to be compensated for that half-hour with interest from the day you would have been paid. Nationally, this should / would very likely amount to literally millions of dollars in back-pay!

Figure 1. Interagency Incident Business Management Handbook (IIBMH) Snippet Source: NWCG

You have all taken this Oath in some form-or-another and never rescinded it, right? Consider this general Oath of Office for any government positions for almost every State or Federal FF, WF, or Contractor must take: “I, [your name] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

“I have spoken of the necessity of being frank and honest with oneself about one's own affairs: many people assume that they can get away from the truth by avoiding thinking about it, but the natural law is inevitable,

and the sooner it is recognized, the better.”

John D. Rockefeller

Figure 2. Immanuel Kant quote on truth Source: FaceBook

The detailed and somewhat complicated post to follow is about the ongoing and often contentious legal issue regarding Compensable Meal Periods when you must be paid for "working" versus Bona Fide Meal Periods when you are unpaid while engaged in eating a meal without "working." This applies to municipal and / or structural firefighters (FF), wildland firefighters (WF), and supervisors working on wildland fires each-and-every fire season. This has been occurring for decades. It's legal history is lengthy. There is historical case law and legal precedent (Circa 1940's) on these issues for a multitude of work groups, including meat-packers, secretaries, dispatchers, firemen, and police officers, however, there is none for municipal and / or structural firefighters (FF), wildland firefighters (WF), and supervisors working on wildland fires. This author alleges that 99% of FFs and WF’s will, in fact, falsify their times because it is much easier for them to do that than to hassle with the Finance Section about the ethics and legality of it all than it is to actually document their factual "hours worked;" and then unfortunately have to deal with the Finance Section Chief and / or personnel on an Incident Management Team (IMT), those handling the mostly larger wildland fires. In other words, gird your loins and simply be honest; document and justify your actual hours worked which should clearly reflect a "Compensable Meal Period" (presupposing that you are following the required tried-and-trued Rules of Engagement (ROE), Entrapment Avoidance Principles, Downhill Checklist, Common Denominators [of Fire Behavior on Tragedy Fires], and LCES listed in the NWCG IRPG using some rendition of this in the Remarks column of your CTR as an example here: "Compensable meal period pursuant to 29 CFR 785.19 on (un)controlled fire in Division A building / holding / burning / firing out fireline ..."

Figure 3. IRPG back page image Source: NWCG, eBay

Otherwise, if your employing Agency, Department, Sponsor - or your immediate supervisor or some unknown odious cretin you're completely unaware of - has somewhat of a personal or less-than-ethical powerful grudge, impulse, or notion to come after you for falsifying your time, you may be setting yourself up for the strong possibility of some serious disciplinary action against you.

A wise man fears and departs from evil;

but a fool rages and is self-confident (14:16)

Proverbs 14:16 (NKJV)

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Consider now one of hundreds of normal "business-like" definitions of the "Be a Team Player, Don't Rock the Boat" concept found on the Internet from a former US Forest Service (USFS) female employee in this article: "What I learned from 30 years with the Forest Service" High Country News (Dec. 17, 2014) "I soon learned that a bureaucracy like the Forest Service values loyalty to the 'outfit' above all. One has to be a team player, and in order to play on the team it is necessary to embrace a worldview shared by one’s teammates. During a Range issue regarding cattle, a District Ranger 'felt he wasn’t doing his job. His boss disagreed, saying: 'Your job is to get along.' The bitter lesson I learned from Dan was that you could ruin your career if you tried too hard to do the right thing. ... After three decades with the Forest Service, there remains one lesson that still surprises me: I still cherish a strong sense of loyalty to the agency, however flawed it is, and to the high-minded principles on which it was founded."

Here is one that encourages "rocking the boat" from the purely business Bishop Fox.com blog (March 31, 2020) titled Support Staff - Why you should rock the boat."

"... I hear people talk about the frustrations they experience at work. Sometimes it’s just venting, but other times it’s real issues that directly affect someone’s quality of life or mental well-being. In those instances, I ask if they’ve brought it up with their manager. The answer I usually receive is, 'I don’t want to rock the boat.' I’ve heard this phrase so many times over the years, and I get it. ... Everyone in the department was a hard worker, but I was willing to speak up and address concerns. Not all managers or executives want to be surrounded by people who only focus on numbers or the end results. ... She recommends to speak up, even if it scares you. When I’m in executive meetings where people talk about processes, company changes, events, or the messaging around them, I speak up when I feel like they’re missing something from the non-executive perspective. I’ll either raise my hand or ask if it’s all right for me to speak on the subject since they might not want my feedback. I would not suggest blurting out what you’re thinking, especially if you disagree with them. I’m thankful they’ve listened to what I’ve had to say each and every time. The group might not agree with me, but they let me know why, which gives me their perspective. This can help later if someone in another support role has the same idea/feeling as I did. As long as I am not divulging information that should be kept within the meeting, I can provide the person some insight into why we’re not doing XYZ based on what was said to me. ... Another thing I’ve learned in these meetings is they address concerns that are brought up by employees. 100 percent of those concerns are tackled. Unfortunately, not all of them can be solved since some things can’t be changed. But those people know their voices were heard. Your voice, too, deserves to be heard! Include possible solutions and not merely the concern."

Figure 4. Abraham Lincoln right quote Source: FB (The 5-Minute Stoic)

Indeed, as the saying goes "come with a solution, we already know what

the problem is."

This one from an Oliver DeMille article profiling Shakespeare titled "Shakespeare Goes to School?" by David Brooks asserting how he feels that today's American education system is manipulative and mentions: "After all, our education system in the Western world are perfectly aligned with this goal: ... the kind [of] student who will grow into what C.S. Lewis called “Men Without Chests” ... We shouldn’t be surprised with this result. After all, our education system[s] in the Western world are perfectly aligned with this goal: the corporate world." [So then, it would readily be a permissible inference to declare that this attitude transfers to and may even potentially prevail in the various work-forces, especially their supervisors, on the firelines discussed above.

"Achieve but don't stand out too much. Succeed, but don't alienate those around you. Fit in, be a team player, impress the adults and you'll get accolades, and career success." David Brooks (New York Times, July 5, 2012)

“The person who writes for fools is always sure of a large audience.” Arthur Schopenhauer

Consider now, a few more germane, meaningful municipal fire website examples regarding wildland firefighters in this article:

The Art of Speaking Up. (SA Matters) by Richard B. Gasaway, PhD, CSP. From the article, he is widely considered a trusted authority on human factors, situational awareness and the high-risk decision making processes used in high-stress, high consequence work environments. He served 33 years on the front lines as a firefighter, EMT-Paramedic, company officer, training officer, fire chief and emergency incident commander. His doctoral research included the study of cognitive neuroscience to understand how human factors flaw situational awareness and impact high-risk decision making. This author considers him a good source because he also discusses wildland fires. He almost always has good advice and information.

_______________________________________________________________________________

From Gasaway's article. "Recently I received a phone call from a fire captain in Colorado. He wanted to discuss some training ideas I inspired during my recent Training for Failure program his department hosted. One of the topics we addressed was teaching firefighters how to speak up when they have concerns. Teaching how to do this is especially important for new firefighters. Here’s why."

Recruit Firefighter Expectations

"Many recruit training programs are highly regimented and recruits are taught to shut up and do as they are told. They spend weeks, sometimes months, learning how to take orders and execute those orders without question. Instructors can be intimidating – sometimes on purpose and sometimes not. Recruits have a lot to learn and oftentimes there’s not much time for debate, discussion, or opinions about what is being taught. The programs are highly regimented and recruits are there to learn. If this describes your training program, there’s nothing wrong with that. However, environments like this teach recruits to be seen but not heard."

Post Recruit Firefighter Expectations

"When recruit firefighters complete their training and receive their station assignments, it is highly probable that the respect for authority and the seen-but-not-heard expectations ingrained in them during their recruit training is likely to continue. Most company officers and command officers I have spoken to have told me, without question, if they were making a mistake that would cause a firefighter to get hurt or killed they would want the firefighter to speak up and express their concerns in hopes of preventing a catastrophe. However, it’s highly likely that firefighters will not speak up – out of fear or respect. A few years ago I had an opportunity to give two presentations to wildland firefighters. The first day’s presentation was for the bosses. The second day’s presentation was for hand crews (frontline firefighting crews). When I was with the bosses we talked about a wildland fatality incident where front line personnel did not speak up, even though they knew things were going bad. We dissected that event and talked about organizational culture, fear of retribution and the importance of creating an environment where frontline firefighters would be willing to speak up if they thought mistakes were being made. The bosses assured me that they have worked hard to create an open culture and strongly encourage hand crew personnel to speak up if they

see or sense something is going wrong. They referred me to the wildland fire" “Ten Standard Firefighting Orders” and the “Eighteen Watch Out Situations”, (a.k.a. as the “10s and 18s”). Several in attendance held up their field guides [IRPG]. Since they seemed to have a handle in this important cultural concept, we quickly moved on to the next lesson. However, on the second day, when I had the hand crews in the room, the story was quite different. Along with the hand crews, there were also some crew bosses present so I asked them to step out of the room for a few minutes so I could talk just to the hand crews. Once the room was clear of all bosses, I asked the hand crews to raise their hands if they would be comfortable speaking up if they saw or sensed something was going wrong in the field. Out of 50+ in the room, three raised their hands and one of them qualified his vote by saying it depended on which crew boss it was.

Speaking up is a skill

Knowing when and how to speak up if there is a concern… is a skill. As a skill, it can be taught. But is it? The curiosity about this led me to the next question for the students. Raise your hands if you’ve ever participated in a training session where you actually practiced speaking up to a boss.

Several of the attendees had admitted to receiving instruction about how and when to speak up. But, sadly, not one student in the room had ever practiced the skill. It’s much easier to TALK ABOUT speaking up than it is.

Action Items

1. Assess your department’s culture to determine if line personnel feel free to speak up when there are concerns for safety. 2. Assess your department’s culture to determine if supervisors are open to critical feedback. 3. Consider developing a policy to address how and when to employ an assertive statement process. 4. Provide training for all personnel on how to give and receive critical feedback. 5. Create training scenarios where personnel practice the skill expressing concerns for safety.

Tailboard Talk - Fire Engineering Fire Engineering (May 30, 2018)

"It is vital to build a fire service culture accepting of improved communication. No matter how well the communication processes in ICS and CRM [Crew Resource Management] "are taught, communication will not improve in a counterproductive culture. As an example, it is hurtful to effective communication to hear senior firefighters and training officers say things such as, 'You have two ears and one mouth for a reason' to new firefighters. Although the intent may be good, it sets the wrong expectation of not speaking up. Given the training processes used in today’s fire service, we have very smart people working as firefighters and officers. The technical aspects of the profession have caused the fire service to seek out smart, effective decision makers and then train them to be even better decision makers. We should take advantage of that training and decision-making ability."

"Given that, we need to change the culture of the fire service from the traditional hierarchy by teaching our newest firefighters that we hire them to be part of the team. We hire them to use that brain in their head to contribute to operations when they have specific information that is important to the crew achieving its task, which is in turn important to achieving incident objectives. However, if we are going to teach our newest firefighters this, we also need to teach our officers to do the same and to be open to someone who is junior to them bringing up alternative suggestions."

"The way to bring about this type of communication is to (1) build trust and (2) reduce the negative impacts of the fire service hierarchy. Building trust is complicated and takes time but can be lost with a single decision or action. Likewise, our culture’s reliance on the hierarchy means it is a constant give-and-take to reduce the effects of the hierarchy on communication."

"Trust is built and lost, in many cases, on how a single situation is handled. The type of situation most prone to building or breaking trust is one that involves the potential for discipline. A leader or supervisor, including the informal leaders such as a senior firefighter, must be thoughtful in how an error is handled. We all make errors; an error being something that is done wrong because of a lack of training or information but with the right intent (in contrast to a violation that is done intentionally to sabotage or undermine). Disciplining a subordinate for an error is counterproductive to building trust. This is particularly true if the error was a result of the supervisor’s lack of training of the subordinate."

"Last, the fire service hierarchy is critical to the completion of tasks at an emergency scene because it provides a system to account for tens, hundreds, or thousands of firefighters operating in a dangerous environment. This is the hierarchy’s positive side. However, the top-down nature has a negative influence on communication that must be overcome for effective communication to occur. Overcoming the negative effects of the hierarchy on communication includes:
Treating subordinates as peers
Particularly when they know more about a particular subject
Having honest, transparent conversations with them
Training them to take your place one day instead of holding knowledge as a source of power
Reducing the hierarchical signs that are pervasive in the fire service
Same color of uniforms for all ranks instead of a visual separation by rank
Do not force subordinates by rule to address a supervisor by name and rank at all times
Officers not performing some of the same tasks as the firefighters when they have time (e.g. washing vehicles or cleaning up the kitchen)
Certain privileges that come with rank (e.g. picking vacation under an advantageous set of rules compared to the firefighters)
Building a high-performance team
As the officer, instill the right values in the team such as open communication, dedication to the group’s success, professionalism, etc.
Work with the members to determine how they define a high-performance team according to the group’s values and then work toward that vision
A high-performance team becomes cohesive because of a common goal of remaining a high-performance team, which leads to effective and honest communication
Identify the high-performance team and take pride in it; a leader should want the team members to be proud of saying, 'I work with Engine 5 B shift,' for example."

Conclusion

"Although there has been much improvement in the ability of members to speak up in the fire service, there is still room for improvement, as the incident previously mentioned illustrates. Performing a detailed, in-depth root cause analysis – one that moves beyond the technical aspects of things like pump or radio failure – will often show that organizational behavior, the things we unintentionally teach our members, are a significant part of any near miss, injury, or line-of-duty death. In fact, it is likely that a culture that does not build effective communication contributes, in some way, to the majority of near misses, injuries, and line-of-duty deaths. The experiences and statistics from the fire service and outside support this. Some of the tools and ideas presented here help improve that situation, but only begin to scratch the surface."

References

Carley, D., & Nelson, C. (2017). No time for playing cards: Higher reliability organizing for the fire service. Tulsa, OK: PennWell Corporation.

Crescent Fire Scald Injury Facilitated Learning Analysis Team. (2017, July 1). Crescent Fire Hot Water Burn Injury (2017). Retrieved 1 12, 2018, from Wildland Fire Lessons Learned Center

Honest weights and scales are the Lord’s; All the weights in the bag are His work. Proverbs 16:11 (NKJV)

Types of Legal Authority

There are two types of legal authority: Primary Authority and Secondary Authority.

“Primary sources are authoritative statements of legal rules by governmental bodies. They include opinions of courts, constitutions, legislation, administrative regulations and opinions, and rules of court.”

“Secondary Sources are materials about the law that are used to explain, interpret, develop, locate or update primary sources. The major types of secondary sources are treatises, Restatements, Loose-leaf services. . . law reviews and other legal periodicals, legal encyclopedias, American Law Reports (A.L.R.) Annotations, and legal dictionaries.” Mersky & Dunn (2002).

This author was on a wildfire on Night Shift performing a Safety Officer assignment on the Globe R.D. of the Tonto N.F. one year with a Type One IMT. The Type One Finance Section Chief after reviewing this author's CTR without "showing a meal period" blurted out "Who gave you the authority to cite the Code of Federal Regulations?" This author stated that it was a "Constitutional Hierarchy of Law." She felt it necessary to summarily demob this author from the fire, sent home, and never received the legal

compensation that was legally due under the "Compensable Meal Period" standard. This author experienced several instances of this over the years.

On another wildfire in Idaho, a Type 1 Initial Attack (IA) Crew was refused a "Compensable Meal Period" and overtime because the arrogant Finance Section Chief with an alleged unprofessional "above the law" attitude told them that you "didn't work as hard as the day shift Crews." So then, where exactly is that listed in any of the CFR's and other legal authorities?

Therefore, it's important to first understand that there is a clear and distinct Hierarchy of Law – Primary Sources as follows that many of the Finance Section Group heads and supervisors should know, because of their position and their required training, however, either know little about them and / or choose to ignore selectively or otherwise.

Hierarchy of Law

a. U.S. Constitution.

b. Federal statutes, treaties, and court rules.

c. Federal administrative agency rules.

d. Federal common law caselaw.

e. State constitutions.

f. State statutes and court rules.

g. State agency rules.

h. State common law caselaw.

i. Secondary authorities

Source: Basic Legal Research: The Hierarchy of Authority (Florida A & M Libraries)

The Supremacy Clause of the U.S. Constitution states in Article VI, Clause (2) of the U.S. Constitution: “The Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . .shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The Code of Federal Regulations (CFRs) "They are authorized by statutes and have the effect of law. They clarify and embody the letter and intent of the statutes. Someone violating a regulation is, in effect, violating the law that created it. Regulations are designed to increase flexibility and efficiency in the operation of laws."

(http://legal-dictionary.thefreedictionary.com/Administrative+Agency)

"It means that the law is above everyone, including the people who hold power. The rule of law means fidelity to the Constitution, to the governing documents which constrain our elected officials (and us). The rule of law is a republican check on the excesses of democracy. A written constitution constrains the ability of individuals, factions, or outright majorities to exercise tyrannical rule over the rest of the polity. It channels and directs political action and political will into a process: the people can have their say, but they must play by the rules of the game. This is undemocratic, in that it checks majoritarianism. But it is also anti-authoritarian in that it prevents powerful individuals from exercising arbitrary power."

There are several different versions of the IIBMH on the Internet dating back to 2016. The following are from 2024. (https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://gacc.nifc.gov/swcc/dc/aztdc/sites/default/files/Interagency%2520Business%2520Management.pdf&ved=2ahUKEwi3ve-2iaWIAxXHJEQIHSzqKV0QFnoECBYQAQ&usg=AOvVaw1zacydIQi2dJFUjcX3VgBZ) and (https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://gacc.nifc.gov/swcc/dc/aztdc/sites/default/files/Interagency%2520Business%2520Management.pdf&ved=2ahUKEwi3ve-2iaWIAxXHJEQIHSzqKV0QFnoECBYQAQ&usg=AOvVaw1zacydIQi2dJFUjcX3VgBZ) and (https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://gacc.nifc.gov/swcc/dc/nmsdc/documents/Dispatch/Reference/pms902_Incident%2520Business%2520Guide.pdf&ved=2ahUKEwi3ve-2iaWIAxXHJEQIHSzqKV0QFnoECB8QAQ&usg=AOvVaw28A4x4P5t7FilPtanIT5A0) and (https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=http://www.nwcg.gov/node/41416&ved=2ahUKEwi3ve-2iaWIAxXHJEQIHSzqKV0QFnoECBsQAQ&usg=AOvVaw2dympMXj5c15_qFuH11N0L)

Here is a link for the S-260 Interagency Business Management, 2014 (Instructor-Led Training Materials from the Wildland Fire Learning Portal) This is the source, through the NWCG, convoluting the "Compensable Meal Period" issue, (e.g. “1) The fire is not controlled, and

“2) The Operations Section Chief [OPS] makes a decision that it is critical to the effort of controlling the fire that personnel remain at their post of duty and continue to work as they eat, and

“3) The compensable meal break is approved by the supervisor at the next level [which may, in fact, be the OPS] and it is documented on the CTR."

This author will first cite the numerous, relevant and higher legal authority in the CFRs and then the lower Administrative Law

interpretation of those regulations dealing with Compensable and Bona Fide Meal Periods as stipulated in the Interagency Incident Business Management Handbook (IIBMH). And this author will refer to the IIBMH as well as other supporting documents in the CFRs, Case Law, Legal Opinions, and elsewhere. And this overarching NWCG source also known as the Red Book contains only four relevant and tertiary hits on this issue.

IIBMH excerpts. Given the clear hierarchy of law, it's important to point out that there are numerous contradictions between what the CFRs mandate and what the Wildland Fire Agencies interpret and enforce. Moreover, it will be necessary to point out the paradoxes even within the IIMBH itself that supposedly directs us to ethically and legally comply with the regulations and more. The NWCG and the FFs and WFs and Wildland Fire Agencies consider the IIBMH as the sole authority on pay issues, notwithstanding the contradictions, discrepancies and clear "letter and spirit of the law" enumerated in the relevant CFRs and caselaw.

Once again, FFs, WFs, and Contractors are told to “show” a meal period on our Crew Time Reports (CTRs) even though the IIBMH and Ethics Laws direct us to be accurate and show the hours we worked. The IIBMH states that Incident Personnel responsibilities are to: Accurately report time to their "incident supervisor” and “the CTR is prepared for each operational period as outlined below. Time must be reported in an accurate, legible fashion. ...” and to “Enter any pertinent information such as …. compensable meal break, etc. … “ (all emphasis added) Page 38 at 10-130.

“Talk either leads to action or substitutes for action.

(Farnum Street Brain Food)

The prudent see danger and take refuge,

but the simple keep going and pay the penalty.

Proverbs 22:15 (NKJV)

Decisions on interpretations; use of interpretations, Duty of Management, Off Duty, Rest Periods,

Meal Periods, Suffer and Permit, Hours Worked

"The standard for compensability of the above is established in the FLSA regulations at 29 C.F.R. Part 785. ... § 785.2 Decisions on interpretations; use of interpretations."

"The ultimate decisions on interpretations of the act are made by the courts. The Administrator must determine in the first instance the positions he will take in the enforcement of the Act. The regulations in this part seek to inform the public of such positions. It should thus provide a '‘practical guide for employers and employees as to how the office representing the public interest in its enforcement will seek to apply it.'’’ (Skidmore v. Swift, 323 U.S. 134, 138 (1944).) (emphasis added)

§ 785.7 Judicial construction.

"The United States Supreme Court originally stated that employees subject to the act must be paid for all time spent in ‘‘physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.’’ (Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944)) "Subsequently, the Court ruled that there need be no exertion at all and that all hours are hours worked which the employee is required to give his employer, that 'an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer.'’’ (Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944)) "The workweek ordinarily includes ‘‘all the time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place.’’ (Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)) "The Portal-to-Portal Act did not change the rule except to provide an exception for preliminary and postliminary activities." (emphasis added)

See § 85.34. [26 FR 190], Jan. 11, 1961, as amended at 76 FR 18859, Apr. 5, 2011

Subpart C—Application of Principles, § 785.10 Scope of subpart.

“This subpart applies the principles to the problems which arise frequently.”

Employees ‘‘Suffered or Permitted’’ to work.

The "Suffer and Permit" clause is an interesting legal concept worth examining as it directly relates the Compensable Meal Period issue at hand. Therefore, if management "permits" its employees to work then it must "suffer" and pay them.

§785.11 General.

"Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time." (emphasis added)

“Employees must be compensated for all time that the employee is "suffered or permitted to work. See 29 C.F.R. § 778.223. An employee is "suffered or permitted" to work when the employer knows, or has reason to believe, that the employee has worked or is continuing to work. See 29 U.S.C. § 785.11. The DOL and courts do not allow employers to get away with not paying an employee overtime if the employer knows that the employee is putting in extra hours, but not recording those extra hours on time sheets. Such work still is considered work for the benefit of the employer, and the employee must be paid accordingly.” (emphasis added)

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§ 785.13 Duty of management.

"In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so." (emphasis added)

"But let your ‘Yes’ be ‘Yes,’ and your ‘No,’ ‘No.’

For whatever is more than these is from the evil one."

Matthew 5:37 (NKJV)

Consider well this Duty of Management clause as critical as it applies to each-and-every instance of time falsification when directed to do so by a supervisor.

§ 785.15 On duty.

“A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting or alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity. …. The time is worktime even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The periods during which these occur are unpredictable. They’re usually of short duration. In either event the employee is unable to use the time effectively for his own purposes. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait." (emphasis added) (supporting citations in the record are not included)

§ 785.16 Off duty.

“(a) General. Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.” (emphasis added)

This author always used this (or similar) clause when told to "take a meal period" by management telling them I'll go back to my vehicle, turn on the air conditioning or heater, shut off my radio, and take a nap. They would state that I was required to follow LCES. This author's response was always "that's working," thus I required to be paid.

And other times we were ironically told to "just leave the fireline" where LCES was not required to take your meal period. Tragically, their reptile brains failed to grasp that too was "working' and required one to be paid.

§ 785.18 Rest.

“Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily aid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time." (emphasis added)

In reality, the FFs and WFs take plenty of "rest periods" throughout each shift and each fire as needed while adhering to the required ROEs and Entrapment Avoidance principles.

§ 785.19 Meal Periods.

“(a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating." (emphasis added) (Culkin v. Glenn L. Martin, Nebraska Co., 97 F. Supp. 661 (D. Neb. 1951), aff'd 197 F. 2d 981 (C.A. 8, 1952), cert. denied 344 U.S. 888 (1952); Thompson v. Stock & Sons, Inc., 93 F. Supp. 213 (E.D. Mich 1950), aff'd 194 F. 2d 493 (C.A. 6, 1952); Biggs v. Joshua Hendy Corp., 183 F. 2d 515 (C. A. 9, 1950), 187 F. 2d 447 (C.A. 9, 1951); Walling v. Dunbar Transfer & Storage Co., 3 W.H. Cases 284; 7 Labor Cases para. 61.565 (W.D. Tenn. 1943); Lofton v. Seneca Coal and Coke Co., 2 W.H. Cases 669; 6 Labor Cases para. 61,271 (N.D. Okla. 1942); aff'd 136 F. 2d 359 (C.A. 10, 1943); cert. denied 320 U.S. 772 (1943); Mitchell v. Tampa Cigar Co., 36 Labor Cases para. 65, 198, 14 W.H. Cases 38 (S.D. Fla. 1959); Douglass v. Hurwitz Co., 145 F. Supp. 29, 13 W.H. Cases (E.D. Pa. 1956))

(b) Where no permission to leave premises. It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.” (emphasis added) Title 29 published on 2012-07-01

"The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. In fact, this is the "rule" and clearly not the "exception" practiced on a fireline.

EMPLOYEES “SUFFERED OR PERMITTED” TO WORK - WAITING TIME

§ 785.14 General.

Whether waiting time is time worked under the [Fair Labor Standards] Act depends upon particular circumstances. The determination involves ‘‘scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait or they may show that he waited to be engaged.’’ (Skidmore v. Swift, 323 U.S. 134 (1944)) Such questions ‘‘must be determined in accordance with common sense and the general concept of work or employment.’’ Central Mo. Tel. Co. v. Conwell, 170 F. 2d 641 (C.A. 8, 1948))

§ 785.47 Where records show insubstantial or insignificant periods of time.

"An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him. … holding that working time amounting to $1 of additional compensation a week is ‘‘not a trivial matter to a workingman, and was not de minimis; … To disregard workweeks for which less than a dollar is due will produce capricious and unfair results. … holding that 10 minutes a day is not de minimis.” (emphasis added) (supporting citations, in the record, not included)

NWCG Interagency Incident Business Management Handbook (IIBMH)

Interagency Incident Business Management Handbook (IIBMH), NWCG Handbook 2, PMS 902, NFES 2160, Chapter 10 – Personnel, March 2016, 324 pp, reference pages 23-24, 10-15 to 10-16.

This author chose the 2012 and 2016 versions for this particular post from research already done at that time. And to reveal the alleged blatant changes made regarding "Compensable Meal Periods."

The reader is encouraged to search for versions up to and including 2024 to examine those differences to better understand the Genesis of and twisted journey of the alleged misuse of the alleged contrary regulations.

“This handbook [IIBMH] was developed under the auspices of the National Wildfire Coordinating Group (NWCG).” (IIBMH 0-1.)

“This handbook [IIBMH] was developed to assist participating agencies of the NWCG to constructively work together to provide effective execution of each agency's incident management program by establishing procedures for:

“Uniform application of regulations on the use of human resources, including classification, payroll, ….” (emphasis added) IIBMH Page 6, 0-1

Are they, in fact, "constructively work[ing] together to provide effective execution of each agency's incident management program because it clearly appears that the USFS and NWCG are allegedly toeing the Party Line on their perverted interpretation and promulgation of the "exception, not the rule" statement. regarding the "compensable meal periods"?

“This handbook [IIBMH] was developed to assist participating agencies of the NWCG to constructively work together to provide effective execution of each agency's incident management program by establishing procedures for: Uniform application of regulations on the use of human resources, including classification, payroll, ….”

….

NWCG STANDARDS

“Uniform application of interagency incident business management standards is critical to successful interagency fire operations. The NWCG standards … are developed by the member agencies through the NWCG Incident Business Committee. Member agencies are encouraged to issue these standards by reference through their respective directives systems and to apply them consistently, except where agency specific legal mandates, policies, rules, or regulations direct otherwise.”

“This handbook must be kept current and made available to incident and agency personnel. Changes to the handbook may be by any agency for a variety of reasons: new law or regulation, legal interpretation or opinion, clarification of meaning, etc." IIBMH P. 6, 0-1

Page 6, 0-2 reveals a flow chart of how new NWCG IIBMH policy is implemented, including new law, interpretation, to submission to agencies, committees, and final NWCG supplement.

“The IBC [Incident Business Committee] will revise this handbook every four years.” NOTE: This author alleges and holds that the separate Agency subgroups, for the past 20+ years, have discounted and / or ignored input from numerous current and former WF supervisors regarding the legal and proper pay issues, especially the compensable meals periods issues as designated in 29 CFR Part 785 Hours Worked.

Below is a listing of the NWCG Business Committee, 2016 Interagency Incident Business Management Handbook Revision, Summary of Significant Changes in Chapter 10:

• Clarified legal authorities for criteria to meet compensable meal periods

“Meal periods should be applied in accordance with the [IIBMH], chapter 10.” Interim Directive, Effective April 2, 2012 and expires March 31, 2013"

(Note: this is the interim provision Pay Plan for Emergency Workers (Casuals) and is NOT in the IIBMH. This author references it only to show it applies to non-General Schedule (GS) employees listed below AND it avoids specifically applying these principles according to the legal hierarchy listed above and the law and legal precedent and case law, i.e. *29 CFR 785.18*** and 29. CFR 785.19. Directly below is the IIBMH straying far afield of and perverting the legal regulations.

Interim Directive 5109.34-2012-1 - “Compensable meal periods are the exception, not the rule" [5 CFR 551.411 (c) and 29 CFR 785.19 (a)].

In reality - on the firelines - based on what you've experienced and / or learned thus far, the reader can confidently admit that the Compensable Meal Periods are, in fact, the rule, and thus far afield of the alleged exception to the rule.

"Ignoring facts does not make them go away."

Fran Tarkenton

Consider now the hugely inaccurate and deceptive citations that realistically apply to other than wildland firefighters (WF).

The 5 CFR 5551.411 (c) relates to “Workday” and the “( c )” provision applies to on-duty meal periods for employees engaged in fire protection or law enforcement activities who receive compensation for overtime hours of work under 5 U.S.C. 5545(c)(1) or (2) or 5545b. Wildland firefighters are excluded from this group. The 5 USC 5545 ( c )(1) provision deals with standby pay differential and avoids meal periods. The 5 USC 5545 ( c )(2) provision deals with “Administratively uncontrollable overtime (AUO) pay.” Employees who are classified as GS-0081 firefighters and whose regular tours of duty average at least 106 hours per biweekly pay period are covered by special pay rules in 5 U.S.C. 5545b and 5 CFR part 550, subp

art M, including special premium pay rules." So, this statute applies specifically to structure and/or aircraft firefighters and excludes addressing wildland firefighters.

Consider now Chapter 10 of the IIBMH regarding Meal Periods, following only some of the necessary prongs / standards, using a completely fallacious and illegal shift from the 29 CFR 785. 19 regulation to the NWCG IIBMH anomaly while on the firelines.

“Personnel on the fireline may be compensated for their meal period if all of the following conditions are met: (“may” emphasis added and “all” emphasis in original)

“1) The fire is not controlled, and (emphasis added). The relevant 785.19(a) CFR regulation says absolutely nothing at all about the control of the fire!

“2) The Operations Section Chief [OPS] makes a decision that it is critical to the effort of controlling the fire that personnel remain at their post of duty and continue to work as they eat, and (emphasis added) The relevant 785.19(a) CFR regulation says absolutely nothing at all about having the OPS involved with making any such decisions!

“3) The compensable meal break is approved by the supervisor at the next level [which may, in fact, be the OPS] and it is documented on the CTR, SF - 261.”

“In those situations where incident support personnel cannot be relieved from performing work and just remain at a post of duty, a meal period may be recorded as time worked for which compensation shall be allowed and documented on the CTR, SF-261.” (emphasis added)

Consider this and ask yourselves how is it even legally possible that “ ... where incident support personnel cannot be relieved from performing work and just remain at a post of duty, a meal period may be recorded as time worked for which compensation shall be allowed ..." and yet while FFs and WFs on the actual FIRELINES are excluded from it . That makes absolutely no sense at all!

Remarkably, this is never mentioned in the general meal periods section that applies to those actually on the firelines.

“Compensable meal breaks include time spent eating while traveling in a plane, bus, or other vehicle.

“For personnel in support positions, and fireline personnel after control of the fire, a meal period of at least 30 minutes must be ordered and taken for each work shift e.g., a minimum 30 minute break for shifts of 8 hours or more.” (emphasis added)

Paradoxically, the above reference to the “personnel in support positions", and "fireline personnel after control of the fire” is the ONLY place where the meal period “must be ordered and taken” standard is asserted. Okay!? Why is that? So then, you have to ask yourselves: How is it that support personnel in the Fire Camps or ICP able to sit at tables, in the shade, sucking down coffee, Gatorade, and juice, etc. while FFs and WFs on the actual firelines are required to follow LCES, ROE, etc. are excluded? Additionally, FFs and WFs on the firelines "after control of the fire" are entitled to compensable meals periods because they must still adhere to required LCES. Remarkably, this is also never mentioned in the general meal periods section that applies to those "working" on those "inherently dangerous" firelines.

NOTE: Unbelievably, this “personnel in support positions” principle was illegally applied to fireline personnel on several fires by some IMTs during the western U.S. 2016 fire season. This author recalls a Federal National Park wildfire in CA in 2008, where the Finance Section Chief arrogantly and remarkably ordered the Night Shift resources (DIVS, Hand Crew, and Engine Crew) to "show" two separate 30-minutes breaks “because they didn’t work as hard as the day Shift resources.” This is blatantly illegal. Where does it actually state that in the IIBMH? It never does! In this author's professional opinion, this is a clear example of IMT Finance personnel arrogantly thinking they are above the law and making it up as they go!

“If we suspect that a man is lying, we should pretend to believe him; for then he becomes bold and assured,

lies more vigorously, and is unmasked.”

Arthur Schopenhauer

A prudent person forsees evil and hides himself.

The simple pass on and are punished.

Proverbs 27:12 (NKJV)

Lack of Candor is Better than Falsification, So Use It! ( https://feltg.com/the-good-news-lack-of-candor-is-better-than-falsification-so-use-it/ )

Federal Law Training Group

Consider the Samuel Smith PH92015911 Opinion and Order 246671 (62 MSR 6116)

Consider this recent investigation video (Figure 5.) of the Tumwater Battalion Chief falsifying his timesheets.

Figure 5. Video of Tumwater Battalion Chief Falsified Time Sheets. Investigation Finds. Source: YouTube, King 5 Seattle

Falsify Time Card and Pay the Consequences (FedSmith.com)

United States of America vs. Herman Ransom (2:09-cr - 20057-JWL) U.S. District Court of Appeals

Federal Disciplinary Action and Adverse Action Lawyers - National Security Law Firm - It's Our Turn to Fight for You - National Security Law Firm (Lots of procedure in this above link)

"Appellant was removed from her position based upon charges of knowingly and willfully altering and submitting false timecards for six pay periods, receiving public money in the form of overtime pay for time that appellant did not work and leave credits to which she was not entitled, and for making false statements concerning the accuracy of the timecards and her right to the monies she was paid." (Rohn vs. Dept. of Army) (MSPB 1986 )

Consider this remarkably applicable germane quote from Hannah Arendt, the famous German born Jewish philosopher, discussing falsehood versus truth: "This constant lie is not intended to make the people believe a lie, but to make no one believe anything anymore. A people that can no longer distinguish between truth and falsehood, cannot distinguish between right and wrong. And such a people, which considers itself deprived of its power, to think and to judge, is also, without knowing or wanting, completely subject to the law of lying. With such a people, you can do whatever you want." (Goodreads.com/author/Hannah_Arendt)

This post delves deeply into the contentious issues of pay while engaged in wildland fire assignments and the controversial subjects of who and what are determined and and considered as "Compensable Meal Periods." Indeed, this author alleges that the “fireline personnel after control of the fire” principle is being falsely and illegally applied contrary to the REQUIRED safety protocols of the Rules of Engagement and the Entrapment Avoidance principles, e.g. Ten Standard Fire Orders, 18 Watch Out Situations, LCES, Downhill Checklist, and the Common Denominators (Carl Wilson).

The IIBMH assertion that compensable meal periods being the "exception and not the rule" on wildland fires clearly begs the question, exhibiting circular reasoning, thus inaccurate. It is, in fact, the exception only because the IIBMH claims it is and it directs FFs and WFs that it factually is the exception. And because they claim it is the exception, they falsely and illegally claim one must hold to and apply the principles held within it. On the contrary, it is factually quite the opposite, and should be corrected and rewritten to state: Compensable meal periods are the rule, and in fact, far afield of the fabled exception!

NOTE: The IIBMH cites the controlling authority of the CFRs, at 29 CFR § 785.19, however, there is absolutely NO mention of anything about any fire, uncontrolled or controlled. The NWCG makes this up from whole cloth. Therefore, this fails to square with 29 CFR § 785.19 as cited in the Handbook because there is nothing in 29 CFR § 785.19 about whether a fire is controlled or not. Therefore, the Handbook ignores the “not completely relieved from duty” or “predominant benefits” prongs established in the relevant CFRs and recognized in numerous long-established precedential case law.

“The [NWCG] has approved this information for the guidance of its member agencies and is not responsible for the interpretation or use of this information by anyone else.” Page 3. So then, does this mean that this author and others using this "official" source are "not responsible" for our own interpretation or use of this information by anyone else?

Work-Rest Guidelines - “ … It does not matter when the 24-hour period starts; All time recorded on the clock is counted as hours of work and time off the clock is counted as hours of rest, including meal breaks." IIBMH, P. 24, 10-16 (emphasis added) However, the FFs and WFs on the firelines are rarely ever "off the clock” and resting. They are merely “showing” a meal break because they are required to do so, therefore, there is no rest.

Incident Supervisor responsibilities:

“Document on-shift time, hazard/environmental differentials, compensable meal breaks, etc., on the CTR, SF-261, in accordance with policies and regulations.” (emphasis added) This is an interesting addition to the IIBMH, in that it directs the WF to document their times on their CTRs “in accordance with policies and regulations.” There is a glaring confusing contradiction here because of the actual, legal 29 CFR § 785.19 regulation and what it has to say about "compensable meal breaks."

Consider now the legal interpretation in this court case of the Lain maxim "expressio unius est exclusio alterius. It is a general principle or statutory interpretation that the mention of one thing implies the exclusion of another under the maxim "expressio unius est exclusio alterius." Hence, a statute that mandates a thing to be done in a given manner normally implies that it shall not be done in any other manner. Botany Worsted Mills v. United States, 278U.S. 282 (1928); and Raleigh and G.R. Co. v. Reid, 0 U.S. 269 (1871).” Delong v. Florida Fish and Wildlife Conservation Commission (2014) No. 3D13-2196, Lower Tribunal No. CS-2013-080; Interpretation of Taxing Statutes,

Thus, the 29 CFR Part 785 (29 CFR § 785.19) dealing with Compensable Meal Periods being "the exception, not the rule" should be controlling and supersede the false IIBMH interpretation cited in Chapter 10?

The Code of Regulations (CFRs) call for compensable meals periods when “not completely relieved from duty” and yet NWCG “policies”call for compensable meal periods as being "the exception and not the rule."

FF and WF Supervisors are already doing this, however, they are being directed to never sign CTRs for FFs and /or WFs that fail to “show” a meal period. Moreover, the “compensable meal periods” provision is both contradicting NWCG “policies” per the IIBMH and yet also met, because it is “in accordance with …. /29 CFR § 785.19] regulations” dealing with compensable meal periods.

“Crew Time Report, SF-261

“The incident supervisor certifies time worked by signing the CTR. The CTR documents time for all crews and overhead.

>

“An incident supervisor will certify CTRs for each operational period which contain the following information:

>

“Remarks – Supervisors are responsible to indicate changes in crew composition or incident position in the CTR Remarks block. This includes:

>

“Compensable Meal Breaks - Justification should be provided on a CTR.”

(emphasis added)

However, MOST times, even when FF, WF justification is provided, the WF Supervisor is still directed by the Finance Section to have their employee “show” a meal period. IIBMH Reference pages 39-41, 10-31 to 10-33.

CTR copy

“Exhibit 4 – Example 1, Crew Time Report, SF-261

“Remarks column:

Figure 6. CTR Snippet S-260 training example indicating legitimate reason for being unable to take a meal break Source: 1978 NWCG IIBMH

NOTE: The above Figure 6. S-260 Interagency Business Management Principles Snippet of a 2012 IIBMH excerpt as an exhibit is a clear indication of the major shift of the NWCG in both allowing the earlier 2012 "Compensable Meal Periods" under 29 CFR 29 then and now prohibiting them. It's clearly an excellent example because it shows what was required to "show the hours worked." Hence, it is both relevant and viable whether their compensable time was “due to a blow up” or not. They were still on the fireline in Division D. ostensibly safely performing their required LCES before, during, and after the alleged 'blow up,' which is still considered working, and thus compensable.

And then there is even this S-260 gem ludicrously claiming that "This online course (estimate 16 hours) exposes students to human performance concepts as part of basic wildland firefighter training." Really? Are they referring to "Human performance concepts" like train future, up-and-coming Finance Section personnel how to falsely and inaccurately claim that "Compensable meal periods are the exception and not the rule"?

NWCG Standards for Interagency Incident Business Management PMS 902 MAY 2024

(https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd1178693.pdf&ved=2ahUKEwjLyvKcp6eIAxX5DkQIHTJcLD4QFnoECBUQAQ&usg=AOvVaw3PW0ljm3gfQePvLyk8q9Sr)

Consider now these 2008 t0 2012 renditions of the IIBMH that clearly reflect viable remarks column comments allowing for Compensable Meal Periods.

“Exhibit 4 – Example 1, Crew Time Report, S F-261

“Remarks column: “Unable to take meal break due to assisting burnout operation.”

IIBMH Reference pages 50-51, 10-42 to 10-43

“Instruction for form completion: Time shall initially be recorded on Crew Time

>

“The CTR is prepared for each operational period as outlined below. Time must be reported in an accurate, legible fashion. At the end of the operational period, the original is given to the Time Unit. A copy is retained by the supervisor or employee.” (emphasis added)

>

“11. Remarks. Enter any pertinent information such as injury, discharge, transfer, position change, reason for hazard/environmental differential, compensable meal break, etc. Include remarks number from Item 6” (emphasis added)

“On-Shift Time

“On-shift time includes actual work, ordered standby, and compensable travel. On-shift time has a specific start and ending time and is recorded as clock hours. Individuals are required to report to their designated work site as scheduled, ready and willing to perform work safely. Employees are paid for actual hours worked, with no guarantee of a maximum shift length, unless otherwise specified in a formal, authorized agreement." (emphasis added)

Reference page 19, 10-11

Meal Periods

Consider now the IIBMH's fallacious and illegal “Compensable meal periods are the exception, not the rule (5 CFR 51.411 (c) 17 and 29 CFR § 785.19). This is completely false and entirely fabricated construct by the USFS and / or the NWCG. In reality, this author contends that it should state the factual “Compensable meal periods are the rule and not the exception.

<

"Time for a meal period is not compensable if the employee is not required to perform substantial duties (86FPBR1026). When an employee’s time and attention is primarily occupied by private pursuit such as eating a meal, then the employee is completely relieved from duty and is not entitled to compensation under the Fair Labor Standards Act (FLSA) (102 LEP 39580)."

NOTE: NO documentation found on 102 LEP 39580

Citing from the IIBMH below, this author argues, it reveals a complete contradiction and fabrication to the controlling legal 29 CFR § 785.19 interpretation cited throughout this post above.

In other words, no where in the 29 CFR 785.19 regulation does it state any of the above regarding "control" of the fire. Moreover, the ROE and Entrapment Avoidance Principles must always be adhered to in all phases of the fire. The term "controlled" clearly means that the fire is unlikely to escape. Thus, it could be controlled while you are mopping up, still requiring you to abide by LCES, etc.

Compensable meal breaks include time spent eating while traveling in a plane, bus, or other vehicle.

Reference page 23, 10-15

Combination With Rest Periods Prohibited

An agency may not extend a regularly scheduled lunch break by permitting an employee to take an authorized rest period (with pay) prior to or immediately following lunch, since a rest period is considered part of the employee's compensable basic workday. The lunch period may be extended only under the authority of 5 U.S.C. 6101(a)(3)(F). (See Comptroller General opinion B-190011, December 30, 1977.)

Comptroller General opinions 47 Comp. Gen. 311 (1967); B-179810, April 9, 1976; B-190011, December 30, 1977; 62 Comp. Gen. 447 (1983).

NOTE: Also cited in the IIBMH is 5 CFR 551.411 (c), however, the “(c)” provision of this citation does not apply to us in the wildland fire realm because it refers to law enforcement and structural firefighters, not wildland firefighters. The “(a)” and “(b)” sections would apply dealing with (a) “workday” and (b) “rest period” covered under 29 CFR 785.18.

§ 551.411 Workday.

(a) For the purposes of this part, workday means the period between the commencement of the principal activities that an employee is engaged to perform on a given day, and the cessation of the principal activities for that day. All time spent by an employee in the performance of such activities is hours of work. The workday is not limited to a calendar day or any other 24-hour period.

"(b) Any rest period authorized by an agency that does not exceed 20 minutes and that is within the workday shall be considered hours of work.

(c) Bona fide meal periods are not considered hours of work, except for on-duty meal periods for employees engaged in fire protection or law enforcement activities who receive compensation for overtime hours of work under 5 U.S.C. 5545(c)(1) or (2) or 5545b. However, for employees engaged in fire protection or law enforcement activities who have periods of duty of more than 24 hours, on-duty meal periods may be excluded from hours of work by agreement between the employer and the employee, except as provided in § 551.432(e) and (f)."

[45 FR 85664, Dec. 30, 1980, as amended at 48 FR 36805, Aug. 15, 1983; 57 FR 59279, Dec. 15, 1992; 67 FR 15467, Apr. 2, 2002]

§ 785.18 Rest.

"Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time." (Mitchell v. Greinetz, 235 F. 2d 621, 13 W.H. Cases 3 (C.A. 10, 1956); Ballard v. Consolidated Steel Corp., Ltd., 61 F. Supp. 996 (S.D. Cal. 1945).

Meal period, rest period, off duty US Government Printing Office (GPO) 29 CFR. NOTE: Breaks are much more representative of what FFs AND WFs do on the firelines during all operational periods. We do not have the luxury or time for a bona fide meal period while performing LCES, the Rules of Engagement, the principles of Entrapment Avoidance, etc.

Note: FFs and WFs are never really "Completely relieved from duty" on both controlled and uncontrolled fires due to the safety requirements to perform LCES, the ROE, and Entrapment Avoidance Principles at a minimum, even during mop-up on a "controlled" fire. Once again, it is the rule and far afield of the exception as they like to state.

29 CFR Federal Case Law AELE Library of Case Summaries from the Fire & Police Personnel Reporter Employment & Labor Law for Public Safety Agencies (Americans for Effective Law Enforcement (AELE) Law Library)

III. Meal and Rest Periods

A. General Regulations on Paid vs. Unpaid

1. quote reg re: breaks of 15 min or so increase productivity, paid

2. quote reg re: meal breaks to be a bona fide meal period, “the employee must be completely relieved from duty . . . the employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.” 29 C.F.R. § 785.19

“The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.” 29 C.F.R. § 785.19(a). The Department of Labor’s regulation states that “a rest period or a lunch period is part of the ‘workday.’” 29 C.F.R. § 785.9.

Mere rest periods of 20 minutes or less are not deductible in the Defendant Tyson case below. “Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.” 29 C.F.R. § 785.18.

“[I]t is clear that an employee’s free time must be severely restricted for off-time to be construed as work time for purposes of the FLSA.” Bridges, 19 F. Supp. 2d at 1379 (citing Birdwell v. City of Gadsden, Ala., 970 F.2d 802, 810 (11th Cir. 1992)) (emphasis original).

To qualify as a bona fide meal period, 29 C.F.R. § 785.19 provides: “The

employee must be completely relieved from duty for the purposes of eating regular meals.” Id. An employee is considered completely relieved from duty when the employee’s time is not spent predominantly for the benefit of the employer. See Avery v. City of Taladega, 24 F.3d 1337, 1346 (11th Cir. 1994); Bridges v. Amoco Polymers, Inc., 19 F.Supp.2d 1375, 1379 (S.D. Ga. 1997). The majority of federal courts have applied this “predominant benefit” test in deciding whether meal periods are compensable under the FLSA. (Footnote 5 omitted)

5See, e.g., Roy v. County of Lexington, South Carolina, 141 F.3d 533, 545 (4th Cir. 1998); Henson v. Pulaski County Sheriff Dept., 6 F.3d 531 (8th Cir. 1993); Alexander v. City of Chicago, 994 F.2d 333 (7th Cir. 1993); Armitage v. City of Emporia, 982 F.2d 430 (10th Cir. 1992); Lamon v. City of Shawnee, 972 F.2d 1145 (10th Cir. 1992); Lee v. Coahoma County, 937 F.2d 220 (5th Cir. 1991). The DOL has similarly concluded that the “completely relieved” standard in section 785.19 is satisfied where the meal time was provided predominantly for the benefit of the employee. See DOL Opinion Letter dated Jan. 17, 2006, attached as ex. 1 to Def.’s Response to [Defendant] Tyson’s argument below that time worked during the meal breaks doesn’t matter, because the meal break overall was for the predominant benefit of the employee. Opp. To Pl.’s Mot. In Limine To Preclude Evidence and Argument Regarding Tyson’s De Minimis Defense (Def.’s Opp.) (applying the “predominant benefit” test); DOL Opinion Letter dated Aug. 6, 2004, attached as ex. 2 to Def.’s Opp. (same); DOL Opinion Letter dated Nov. 7, 1994, attached as ex. 3 to Def.’s Opp. (same). 555614.1 1

Cited below: B-189782, FEB. 3, 1978, 57 COMP.GEN. 259 (http://www.gao.gov/products/441883#mt=e-report)

NOTE: CAPITALIZATION below in original Comptroller General (Comp Gen) cases unless otherwise noted.

“WAGE BOARD EMPLOYEES ARE NOT ENTITLED TO BE PAID FOR PERIODS SET ASIDE FOR EATING PURPOSES, PROVIDED THAT THIS NONCOMPENSATED TIME MEETS THE STANDARD SUCCINCTLY STATED IN BANTOM V. UNITED STATES, 165 CT.CL. 312, 320 (1964), CERT. DENIED, 379 U.S. 890, AS FOLLOWS:

AN EMPLOYEE IS NOT ENTITLED UNDER THE FEDERAL EMPLOYEES PAY ACT TO COMPENSATION FOR TIME SET ASIDE FOR EATING, EVEN WHERE THE EMPLOYEE IS ON A DUTY STATUS AND SUCH TIME IS, THEREFORE, SUBJECT TO POSSIBLE INTERRUPTION. COMPENSATION IS AVAILABLE ONLY IF IT IS SHOWN THAT SUBSTANTIAL OFFICIAL DUTIES WERE PERFORMED DURING THAT PERIOD. (emphasis added)

SEE ALSO BENNETT V. UNITED STATES, 194 CT.CL. 889 (1971); ARMSTRONG V. UNITED STATES, 144 CT.CL. 659 (1959); AND B-166304, APRIL 7, 1969.

“[We] THEREFORE HOLD THAT AGENCIES HAVE NO AUTHORITY TO PAY OVERTIME COMPENSATION FOR EMPLOYEE MEAL PERIODS UNLESS SUCH EMPLOYEES PERFORM SUBSTANTIAL DUTIES DURING THE MEAL PERIODS.”

Comptroller General Decision B-217578, FEB 27, 1986, 65 COMP.GEN. 357 (below)

NATIONAL BROILER COUNCIL, INC. V. FEDERAL LABOR RELATIONS COUNCIL, 382 F.SUPP. 322 (E.D.VA. 1974); B-166304, APRIL 7, 1969. (below)

“ON THE OTHER HAND, AN EMPLOYEE MAY BE COMPENSATED FOR AUTHORIZED REST PERIODS. THE PURPOSE OF A REST PERIOD IS TO PROVIDE A BRIEF PERIOD OF TIME FOR A RESPITE FROM THE WORK ROUTINE, PERHAPS IN ORDER FOR THE EMPLOYEES TO RECHARGE THEMSELVES BEFORE CONTINUING WITH THEIR DUTIES. HAS BEEN RECOGNIZED THAT REST BREAKS PROMOTE THE EFFICIENCY OF THE EMPLOYEE. SEE 29 C.F.R. SEC. 785.18 (1985). AN AGENCY HEAD MAY GRANT BRIEF REST PERIODS WHEN HE OR SHE DETERMINES THAT THIS WOULD BE BENEFICIAL OR ESSENTIAL TO THE EFFICIENCY OF THE FEDERAL SERVICE. B-166304, APRIL 7, 1969. HENCE, SUCH REST PERIODS ARE CONSIDERED TO BE PART OF THE EMPLOYEE'S DAY AND ARE COMPENSATED.

THE GENERAL AUTHORITY OF HEADS OF AGENCIES TO REGULATE THE CONDUCT OF EMPLOYEES, AS CONTAINED IN 5 U.S.C. SEC. 301, HAS BEEN CITED AS THE BASIC AUTHORITY FOR THE ALLOWANCE OF BRIEF LUNCH PERIODS. A THIS RULE HOLDS TRUE FOR EMPLOYEES COVERED BY THE FAIR LABOR STANDARDS PRIMARY TEST FOR ESTABLISHING A BONA FIDE MEAL PERIOD IS WHETHER THE EMPLOYEES ARE REQUIRED TO PERFORM SUBSTANTIAL DUTIES AND THUS ARE NOT COMPLETELY RELIEVED FROM DUTY FOR THE PURPOSE OF EATING. 25 COMP.GEN. 315 (1945); B-190011, DECEMBER 30, 1977; AND B-56940, MAY 1, 1946. THIS RULE HOLDS TRUE FOR EMPLOYEES COVERED BY THE FAIR LABOR STANDARDS ACT, 29 U.S.C. SECS. 201-219 (1982), AND IS APPLIED EVEN THOUGH THE BREAK IS SHORTER THAN 30 MINUTES. BLAIN V. GENERAL ELECTRIC CO., 371 F.SUPP. 857 (W.D.KY. 1971).”

CONCLUSION

“SINCE THE PURPOSE OF THE 20-MINUTE REST/MEAL BREAK IS TO PERMIT EMPLOYEES TO TAKE THEIR NOONDAY MEAL AND SINCE IT IS STATED THAT THE EMPLOYEES ARE NOT REQUIRED TO WORK DURING WORK BREAKS, THE RULE APPLICABLE TO MEAL PERIODS RATHER THAN REST BREAKS MUST BE APPLIED. THAT IS, ANY PERIOD SET ASIDE FOR THE PURPOSE OF PERMITTING EMPLOYEES TO EAT WHERE THE EMPLOYEES ARE NOT REQUIRED TO DO SUBSTANTIAL DUTIES IS NOT COMPENSABLE, REGARDLESS OF THE NAME USED TO DESCRIBE IT. AS INDICATED ABOVE, THE FACT THAT THE EMPLOYEE IS FREE FROM JOB REQUIREMENTS TO TAKE A MEAL, NOT THE LENGTH OF TIME INVOLVED, GOVERNS THE TREATMENT OF SUCH A PERIOD. BLAIN V. GENERAL ELECTRIC CO., SUPRA.”

“ACCORDINGLY, SINCE THERE IS NO REQUIREMENT THAT WORK BE PERFORMED DURING THE MEAL/REST BREAK PROPOSED THERE IS NO AUTHORITY TO INCLUDE THAT BREAK AS COMPENSABLE TIME. THIS CONCLUSION APPLIES EQUALLY TO GENERAL SCHEDULE EMPLOYEES AND WAGE GRADE EMPLOYEES.”

Comptroller General Decision B-217578, FEB 27, 1986, 65 COMP. GEN. 357

NATIONAL BROILER COUNCIL, INC. V. FEDERAL LABOR RELATIONS COUNCIL, 382 F.SUPP. 322 (E.D.VA. 1974); B-166304, APRIL 7, 1969.

§785.12 Work performed away from the premises or job site.

The rule is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked. (emphasis added)

§785.13 Duty of management.

In all such cases, it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so. (emphasis added)

Combination With Rest Periods Prohibited

An agency may not extend a regularly scheduled lunch break by permitting an employee to take an authorized rest period (with pay) prior to or immediately following lunch, since a rest period is considered part of the employee's compensable basic workday. The lunch period may be extended only under the authority of 5 U.S.C. 6101(a)(3)(F). (See Comptroller General Opinion B-190011, December 30, 1977.)

OPM.gov Pay and Leave and Work Schedules ( http://www.opm.gov/policy-data-oversight/pay-leave/work-schedules/fact-sheets/lunch-or-other-meal-periods/)

Kerns, Ellen C. Off-the-Clock Time - When Is It Compensable? Epstein Becker and Green P.C. - Employees “Suffered or Permitted to Work”

Work performed, that is not requested by the employer, but is permitted, is “work time.” (Footnote 270) The DOL cites, as an example, a situation where an employee voluntarily continues to work at the end of his or her shift. For example, the worker may stay to finish an assigned task, or correct errors, or prepare time reports or other records. The reasons why an employee stays to work are immaterial. If the employer knows or has reason to believe the employee is continuing to work, the time spent is work time. (Footnote 28) (emphasis added)

This rule is also applicable to work performed away from the premises or the job site, even at home. If the employer knows or has reason to believe that work is being performed, he or she must count the time as hours worked.

It is the duty of management to exercise control and see that work is not performed if the employer does not want to pay for it being performed. Employers cannot accept the benefits without compensating employees for the work. Moreover, the mere promulgation of a rule against such work is not enough. Management must make every effort to enforce the rule.

62 29 C.F.R. § 785.19(a).

63 Id.

64 29 C.F.R. § 785.19(b).

65 2000 WL 33126561 (Dep’t of Labor Sept. 25, 2000).

66 323 U.S. 126, 4 WH Cases 862 (1944).

67 323 U.S. 134, 4 WH Cases 861 (1944).

68 127 F. Supp. 2d 27, 6 WH Cases 2d 1278 (D.D.C. 2000).

69 Id. at 33.

70 Id.

"LCES : Lookouts - Communications - Escape Routes - Safety Zones

In the wildland fire environment, four basic safety hazards confront the firefighter: (1) Lightning, (2) Fire-weakened Timber, (3) Rolling Rocks, and

(4) Entrapment by Running Fires

"Each firefighter must know the interconnection of LCES: (1) Lookouts,

(2) Communications, (3) Escape Routes, and (4) Safety Zones

"LCES should be established before fighting the fire: Select lookouts, set up a communications, choose escape routes, and select safety zones.

LCES functions sequentially - it's a self-triggering mechanism. Lookouts assess -and reassess - the fire environment and communicate threats to safety; firefighters use escape routes to safety zones. All firefighters should be alert to changes in the fire environment and have the authority to initiate communication. (emphasis added) LCES is built on two guidelines: (italics emphasis added)

"Before safety is threatened, each firefighter must know the LCES system will be used, and LCES must be continuously reevaluated as fire conditions change. The LCES system approach to fireline safety is an outgrowth of my analysis of fatalities and near misses for over 20 year of active fireline suppression duties. LCES simply focuses on the essential elements of the standard FIRE ORDERS. Its use should be automatic in fireline operations, and all firefighters should know the LCES interconnection."

Source: USFS Fire and Aviation Management – Risk Management – LCES

(http://www.fs.fed.us/fire/safety/lces/lces.html)

Sources

Overtime Law Blog – FLSA Decisions (http://flsaovertimelaw.com/tag/meal-breaks/) - “meal periods are not required under the FLSA.”

Beyond Principle-Agent Theories: Judicial Hierarchy (http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1167&context=nulr)

Supremacy Clause - (http://www.nrgnair.com/MPT/supremacy_clause.htm) The Source of the Law, Professor Allison Connelly, Associate Professor, UK College of Law

Forest Service Handbook (FSH) 5109.34 - Interagency Incident Business Management Handbook Chapter 10 – Personnel Interim Directive No.: 5109.34-2015-1 Effective Date: March 26, 2015 Duration: This interim directive expires on March 31, 2016. Approved: Jame E. Hubbard Deputy Chief Date Approved: 03/23/2015 (https://www.fs.fed.us/fire/safety/wct/interimdirective_5109.34-2015-1.pdf)

BLM Standards for Fire Business Management. (https://www.blm.gov/sites/default/files/docs/2022-07/2022-BLM_OB_Final%205.15.22-w%20memo.pdf.)

Lawrence E. Henke, Is the Fair Labor Standards Act Really Fair – Government Abuse or Financial Necessity: An Analysis of the Fair Labor Standards Act 1974 Amendment - The 207 (K) Exemption, 52 SMU L. Rev. 1847 (1999) (http://scholar.smu.edu/smulr/vol52/iss4/16) and

{http://scholar.smu.edu/cgi/viewcontent.cgi?article=1752&context=smulr)

Mitchell, Rochell et al v. JCG Industries and Koch Foods (2014) No. 13-2115, 7th Circuit. (http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2014/03/Mitchell.pdf)

Roy M. Mersky & Donald J. Dunn, Legal Research Illustrated, Sec. B (8th ed. 2002). (http://www.nrgnair.com/MPT/supremacy_clause.htm)

The Wage & Hour Track Compensability of Waiting Time, Rest and Meal Periods, and Training Under the FLSA.

(http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2008/ac2008/156.authcheckdam.pdf)

Sources

Cornell University Law School, CRS Annotated Institution, online, Article VI, Supremacy Clause (https://www.law.cornell.edu/anncon/html/art6_user.html)

Roy M. Mersky & Donald J. Dunn, Legal Research Illustrated, Sec. B (8th ed. 2002). (http://www.nrgnair.com/MPT/supremacy_clause.htm)

Dowden, Bradley (online) Fallacies. Internet Encyclopedia of Philosophy (IEP). (http://www.iep.utm.edu/fallacy/)

Government Printing Office, 29 CFR Part 785.

(https://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol3/pdf/CFR-2011-title29-vol3-part785.pdf)

NWCG, Incident Business Committee, 2016 IIBMH Revision, Summary of Significant Changes.

NWCG, Incident Response Pocket Guide (IRPG) (2014) PMS 461. (https://www.nwcg.gov/)

NWCG Interagency Incident Business Management Handbook, PMS 902, NFES 2160, Chapter 10 – Personnel, March 2016, 324 pp, reference pages 23-24, 10-15 to 10-16. (https://www.nwcg.gov/sites/default/files/publications/pms902.pdf)

NWCG 2016 IIBMH Digest of Changes – National Geographic Area

(https://gacc.nifc.gov/gbcc/admin/IBCdocs/Synopsis_FINAL_IIBMH.pdf)

Lawrence E. Henke, Is the Fair Labor Standards Act Really Fair – Government Abuse or Financial Necessity: An Analysis of the Fair Labor Standards Act 1974 Amendment - The 207 (K) Exemption, 52 SMU L. Rev. 1847 (1999) (http://scholar.smu.edu/smulr/vol52/iss4/16) and (http://scholar.smu.edu/cgi/viewcontent.cgi?article=1752&context=smulr)

Lilian Goldman Law Library, Yale University (2017) Introduction to Legal Research Resources. (http://library.law.yale.edu/introduction-legal-research-resources)

Smith, Sam J., Marguerite M. Longoria, Loren Donnell (2008) ABA Section of Labor and Employment Law. The Wage & Hour Track Compensability of Waiting Time, Rest and Meal Periods, and Training Under the FLSA.

(http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2008/ac2008/156.authcheckdam.pdf)

And now to answer the question posited in the title: Are You Complicit in the Ongoing Fraud on the Firelines Debacle, "Showing" Without Actually "Taking" a Meal Period?

There are those of you that are, in fact, complicit in the ongoing Fraud on the Firelines debacle, because you dutifully continue to "Show" one without actually "Taking" a meal period in spite of all the legal reasons included in this post why not to do so. And many of them you know and have known are illegal.

Hopefully, more than most of you - once you read and digest its content - will now know, or be aware of the legal Rules and Regulations related to what is required of you. So, are you planning to continue to falsify your time sheets in spite of what you now know is - at a minimum unethical and clearly illegal - because of the "intent to deceive" clauses below?

Or are you going to become or remain a faithful member of the “Men Without Chests,” Kool-Aid drinking, Groupthink, Be a Team Player,

Don't Rock the Boat group? Do the difficult right thing!

Does Your Team Suffer From Groupthink? Wildland Fire Leadership (Nov. 2014)

Groupthink is also listed as one of the Hazardous Attitudes in the IRPG on p. x1. (e.g. Invulnerable - This can't happen to me; Anti-Authority - Disregard of the team effort; Impulsive - Do something even if it's wrong; Macho - Trying to impress or prove something; Complacent - Just another routine fire; Resigned - We can't make a difference; Group Think - Afraid to speak up or disagree

Hopefully, you noticed that the Anti-Authority prong has Team Player connotations with its "Disregard of the team effort" stance?

903. False Statements, Concealment—18 U.S.C. § 1001

The prohibition of 18 U.S.C. § 1001 requires that the false statement, concealment or cover up be "knowingly and willfully" done, which means that "The statement must have been made with an intent to deceive, a design to induce belief in the falsity or to mislead, but § 1001 does not require an intent to defraud -- that is, the intent to deprive someone of something by means of deceit." United States v. Lichenstein, 610 F.2d 1272, 1276-77 (5th Cir.), cert. denied, 447 U.S. 907 (1980). The government may prove that a false statement was made "knowingly and willfully" by offering evidence that defendants acted deliberately and with knowledge that the representation was false. See United States v. Hopkins, 916 F.2d 207, 214 (5th Cir. 1990). The jury may conclude from a plan of elaborate lies and half-truths that defendants deliberately conveyed information they knew to be false to the government. Id. at 214-15.

As used in the statute, the term "knowingly" requires only that the defendant acted with knowledge of the falsity. See United States v. Lange, 528 F.2d 1280, 1287-89 (5th Cir. 1976). As in other situations, to commit an act "knowingly" is to do so with knowledge or awareness of the facts or situation, and not because of mistake, accident or some other innocent reason. See Fifth Circuit Pattern Jury Instructions, § 1.35 (1990). Knowledge of the criminal statute governing the conduct is not required.

“Most people are interested. Few are truly committed. Most people are interested. Few are truly committed. Interested people act when it's convenient; committed people act no matter what. Interested people do the minimum; committed people push beyond limits. Interested people wait to be told; committed people take the initiative. Fully committing is the key to accomplishment.”

FS Farnum Street - Aug. 4, 2024

"The false statement need not be made with an intent to defraud if there is an intent to mislead or to induce belief in its falsity. Reckless disregard of whether a statement is true, or a conscious effort to avoid learning the truth, can be construed as acting 'knowingly.'" United States v. Evans, 559 F.2d 244, 246 (5th Cir. 1977), cert. denied, 434 U.S. 1015 (1978).

"A defendant is not relieved of the consequences of a material misrepresentation by lack of knowledge when the means of ascertaining truthfulness are available. In appropriate circumstances, the government may establish the defendant's knowledge of falsity by proving that the defendant either knew the statement was false or acted with a conscious purpose to avoid learning the truth." See United States v. West, 666 F.2d 16, 19 (2d Cir. 1981); Lange, 528 F.2d at 1288; United States v. Clearfield, 358 F. Supp. 564, 574 (E.D. Pa. 1973). "Proof that the defendant acted with reckless disregard or reckless indifference may therefore satisfy the knowledge requirement, when the defendant makes a false material statement and consciously avoids learning the facts or intends to deceive the government." See United States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979). "The term 'willfully' means no more than that the forbidden act was done deliberately and with knowledge, and does not require proof of evil intent." McClanahan v. United States, 230 F.2d 919, 924 (5th Cir. 1955), cert. denied, 352 U.S. 824 (1956); McBride v. United States, 225 F.2d 249, 255 (5th Cir. 1955), cert. denied, 350 U.S. 934 (1956). "An act is done 'willfully' if done voluntarily and intentionally and with the specific intent to do something the law forbids. There is no requirement that the government show evil intent on the part of a defendant in order to prove that the act was done 'willfully.'" See generally United States v. Gregg, 612 F.2d 43, 50-51 (2d Cir. 1979); American Surety Company v. Sullivan, 7 F.2d 605, 606 (2d Cir. 1925)(Hand, J.); United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970),cert. denied, 401 U.S. 955 (1971) (involving 15 U.S.C. § 32(a). See also 1 E. Devitt, C. Blackmar, M. Wolff & K. O'Malley, Federal Jury Practice and Instructions, § 17.05 (1992). [cited in JM 9-42.001]

Given all that, do the difficult right thing and go against the grain of those attempting to dissuade by avoiding the noxious Party Liners and Yes-Men and Yes-Women by refusing to drink the Kool-Aid, akin to submitting to the near-fatal attempts of the alluring Sirens seeking to entice Jason and his men onto the deadly rocks in the Jason and the Argonauts fable?

Figure 7. Sirens image Source: Marie-Francois Firmin-Girard (1838-1921)

"What we think, or what we know, or what we believe is, in the end, of little consequence. The only consequence is what we do."

John Ruskin -

English art / society critic who sought to cause widespread cultural change

How many of you knew ahead of reading this post, about the numerous intimate details of the germane, legally codified wildland firefighting Rules and Regulations - "Compensable meal periods vs Bona fide meal periods, Suffer and Permit, Duty of Management, Predominant Benefit test, No permission to leave premises, a Constitutional Hierarchy of Law, a NWCG Incident Business Committee, 2016 IIBMH Revision, the posting of a Summary of Significant Changes," And, if so, have you been, or are you now planning to take advantage of submitting some needed changes?

How about the Constitutional Hierarchy and the Supremacy Clause?

How many of you ever refused to "show" a meal period and were then summarily sent to "Division Siberia" and eventually demobbed? (IRPG p. 19 ) How many of you actually "showed" the true "hours worked" as required and then suffered the wrath of some Kool-Aid drinking Finance section personnel or supervisor?

"No one wants to hear anything you ever have to say unless you give them a reason to listen." Matthew Dicks (Story Teller - Storyworthy)

“Courage is not something that you already have that makes you brave when the tough times start. Courage is what you earn when you’ve been through the tough times and you discover they aren’t so tough after all.”

Malcolm Gladwell

Consider now several worthwhile additional Malcolm Gladwell, David and Goliath: Underdogs, Misfits, and the Art of Battling Giants book quotes related to this post title that should hopefully spark several of experienced and inexperienced readers to at least thoughtfully consider - and even heed - his sage wisdom; all-the-while passing it along to others. All quotes are from the Goodreads website:

“Giants are not what we think they are. The same qualities that appear to give them strength are often the sources of great weakness.”

“The visionary starts with a clean sheet of paper, and re-imagines the world.”

“The principles of legitimacy are based on three things. First of all, the people who are asked to obey authority have to feel like they have a voice--that if they speak up, they will be heard. Second, the law has to be predictable. There has to be a reasonable expectation that the rules tomorrow are going to be roughly the same as the rules today. And third, the authority has to be fair. It can't treat one group differently from another.”

“We are all of us not merely liable to fear, we are also prone to be afraid of being afraid, and the conquering of fear produces exhilaration. …The contrast between the previous apprehension and the present relief and feeling of security promotes a self-confidence that is the very father and mother of courage.”

“You can’t concentrate on doing anything if you are thinking, “What’s gonna happen if it doesn’t go right?”

“What is learned out of necessity is inevitably more powerful than the learning that comes easily.”

“We spend a lot of time thinking about the ways that prestige and resources and belonging to elite institutions make us better off. We don’t spend enough time thinking about the ways in which those kinds of material advantages limit our options.”

“When people in authority want the rest of us to behave, it matters—first and foremost—how they behave.” (italics added)

“The excessive use of force creates legitimacy problems, and force without legitimacy leads to defiance, not submission.”

“Much of what we consider valuable in our world arises out of (these) one-sided conflicts. Because the act of facing overwhelming odds, produces greatness and beauty.”

“... they were not really afraid. They were just afraid of being afraid.”

“... innovators need to be disagreeable. By disagreeable, I don’t mean obnoxious or unpleasant. I mean that on that fifth dimension of the Big Five personality inventory, 'agreeableness,' they tend to be on the far end of the continuum. They are people willing to take social risks—to do things that others might disapprove of.”

“What the Israelites saw, from high on the ridge, was an intimidating giant. In reality, the very thing that gave the giant his size was also the source of his greatest weakness. There is an important lesson in that for battles with all kinds of giants. The powerful and the strong are not always what they seem.”

“When people in authority want the rest of us to behave, it matters—first and foremost—how they behave. This is called the “principle of legitimacy,” and legitimacy is based on three things. First of all, the people who are asked to obey authority have to feel like they have a voice—that if they speak up, they will be heard. Second, the law has to be predictable. There has to be a reasonable expectation that the rules tomorrow are going to be roughly the same as the rules today. And third, the authority has to be fair. It can’t treat one group differently from another. All good parents understand these three principles implicitly. If you want to stop little Johnnie from hitting his sister, you can’t look away one time and scream at him another. You can’t treat his sister differently when she hits him. And if he says he really didn’t hit his sister, you have to give him a chance to explain himself. How you punish is as important as the act of punishing itself.” (emphasis added)

"The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.”

“But so much of what is beautiful and valuable in the world comes from the shepherd, who has more strength and purpose than we ever imagine.”

"Like as it may be—matters. How you feel about your abilities—your academic 'self-concept'—in the context of your classroom shapes your willingness to tackle challenges and finish difficult tasks. It’s a crucial element in your motivation and confidence.”

“So why don’t Americans cheat? Because they think that their system is legitimate. People accept authority when they see that it treats everyone equally, when it is possible to speak up and be heard, and when there are rules in place that assure you that tomorrow you won’t be treated radically different from how you are treated today. Legitimacy is based on fairness, voice and predictability, and the U.S. government, as much as Americans like to grumble about it, does a pretty good job of meeting all three standards. Pg. 293” For obvious reasons, this author takes umbrage with this one because: "the U.S. government, as much as Americans like to grumble about it, does [a rather terrible job] ... of meeting all three standards" and in fact, this author alleges does a rather terrible job - intentionally and with purpose!

"The injunction to be nice is used to deflect criticism and stifle the legitimate anger of dissent."

In closing, with you all now hopefully well-informed - go forth and do your "inherently dangerous" jobs exceptionally well while to the best of your abilities adhering to the Rules of Engagement (ROE), Entrapment Avoidance Principles, Downhill Checklist, Common Denominators [of Fire Behavior on Tragedy Fires], and LCES and either "show a meal period" and go sleep in your vehicle and / or some other personal endeavor turning off your radio and refusing to "work" [Fire Order No. 7] and / or knowingly falsify your time and possibly risk disciplinary action against you all-the-while safely engaging the fire while working without being "completely relieved from duty for the purposes of eating regular meals" or choosing instead to "Being a Kool=Aid Drinking Team Player"?

Figure 8. David versus Goliath image Source: Wikipedia Osmar Schindler (c. 1888) lithograph

He who guards his mouth preserves his life. But he who opens wide his lips shall have destruction.

Proverbs 13:1 (NKJV)

“Once you understand that Goliath is much weaker than you think he is, and David has superior technology, then you say: why do we tell the story the way we do? It becomes, actually, a far more meaningful and important story in its retelling than in the kind of unsophisticated way we've done it for, I think, too long.” Malcolm Gladwell

Corrections & Updates: minor spelling, punctuation, bold, italics, parentheses, quotation marks, grammar; clarifications and better definitions of some of the legal text; added the "told to leave the fireline" quote text. September 6, 2024 at 7:25 PM MST.

2 commentaires

dude.fire.archives

07 sept.

fixed the YOU'RE: that means that if you're you're on the 9-6-24 7:36pm

September 6, 2024 at 7:25 PM MST. My comments vanished when it was reverted to draft-

I, Joy A Collura, have read partial areas of this post weeks ago and have not yet read the updated version. I support any person willing to place concerns seen in the fire industry to do our part to lessen Wildland Firefighter losses and that safety / documented truth(s) does matter.

YARNELLHILLFIREREVELATIONS.COM

Yarnell Hill Fire

-June 30, 2013

-Eyewitness Research Data

-A.R.S. § 39-121 Non-Commercial Use Only