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Burlington Truck Lines, 371 U.S. 156 (1962)

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Burlington Truck Lines, 371 U.S. 156 (1962)
United States Supreme Court

From the U.S. Government Printing Office via GPO Access
 
Case:   BURLINGTON TRUCK LINES

Case #: 371US156


NO. 27.  ARGUED OCTOBER 15-16, 1962.  - DECIDED DECEMBER 3, 1962.* - 194
F. SUPP. 31, REVERSED AND CAUSE REMANDED. 

*TOGETHER WITH NO. 28, GENERAL DRIVERS & HELPERS UNION, LOCAL 554,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA, V. UNITED STATES ET AL., ALSO ON APPEAL FROM THE
SAME COURT. 


BECAUSE OF A LABOR DISPUTE, ARRANGEMENTS BETWEEN NONUNIONIZED
SHORTLINE MOTOR CARRIERS IN NEBRASKA FOR THE INTERCHANGE OF TRAFFIC
WITH UNIONIZED TRUNK-LINE MOTOR CARRIERS FOR MOVEMENT TO AND FROM
POINTS BEYOND NEBRASKA WERE DISRUPTED BY A UNION-INDUCED BOYCOTT OF
SUCH TRAFFIC UNDER "HOT CARGO" CLAUSES IN CONTRACTS BETWEEN THE UNIONS
AND THE TRUNK-LINE CARRIERS WHICH PROTECTED THE EMPLOYEES' RIGHT TO
REFUSE TO HANDLE "UNFAIR GOODS."  TO MEET THIS SITUATION, THE SHORT
LINE CARRIERS ORGANIZED A CORPORATION WHICH APPLIED TO THE INTERSTATE
COMMERCE COMMISSION UNDER SEC. 207(A) OF THE INTERSTATE COMMERCE ACT
FOR AUTHORITY TO ACT AS AN INTERSTATE MOTOR CARRIER.  THE COMMISSION
FOUND THAT THE UNION-INDUCED BOYCOTT OF THE SHORT-LINE CARRIERS BY THE
TRUNK-LINE CARRIERS HAD RESULTED IN SERIOUS INADEQUACIES IN THE
SERVICES AVAILABLE TO A LARGE SECTION OF THE PUBLIC, AND IT GRANTED THE
APPLICANT PART OF THE OPERATING AUTHORITY REQUESTED.  IT MADE NO
FINDINGS TO JUSTIFY THE CHOICE OF THIS REMEDY INSTEAD OF OTHER FORMS OF
RELIEF UNDER OTHER SECTIONS OF THE ACT.  FOUR MONTHS LATER, CONGRESS
ENACTED THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959,
WHICH AT LEAST RAISED SERIOUS QUESTIONS AS TO THE VALIDITY OF THE UNION
INDUCED BOYCOTT.  SUBSEQUENTLY, THE DISTRICT COURT SUSTAINED THE
COMMISSION'S ORDER AS WITHIN THE SCOPE OF ITS AUTHORITY, BASED ON
ADEQUATE FINDINGS AND SUPPORTED BY SUBSTANTIAL EVIDENCE.  HELD: THE
JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT
WITH INSTRUCTIONS TO SET ASIDE THE COMMISSION'S ORDER AND REMAND THE
CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS.  PP. 158-174. 

1.  THE COMMISSION'S ORDER MUST BE SET ASIDE AS AN IMPROVIDENT
EXERCISE OF ITS DISCRETION AS TO THE CHOICE OF REMEDIES.  PP. 165-170. 

(A)  WHEN, AS HERE, THE PARTICULAR DEVIATIONS FROM AN OTHERWISE
COMPLETELY ADEQUATE SERVICE (WHICH HAS ECONOMIC NEED FOR THE TRAFFIC)
CONSIST SOLELY OF ILLEGAL AND DISCRIMINATORY REFUSALS TO ACCEPT OR
DELIVER TRAFFIC FROM OR TO PARTICULAR CARRIERS OR SHIPPERS, THE POWERS
OF THE COMMISSION UNDER SECS. 204, 212 AND 216 BEAR HEAVILY ON THE
PROPRIETY OF RELIEF UNDER SEC. 207.  PP. 165-166. 

(B)  IN SUCH A CASE, THE CHOICE OF THE CERTIFICATION REMEDY MAY NOT
BE AUTOMATIC; IT MUST BE RATIONAL AND BASED UPON CONSCIOUS CHOICE THAT,
IN THE CIRCUMSTANCES, THE PUBLIC INTEREST IN "ADEQUATE, ECONOMICAL, AND
EFFICIENT SERVICE" OUTBALANCES WHATEVER PUBLIC INTEREST THERE IS IN
PROTECTING THE REVENUES OF EXISTING CARRIERS, IN ORDER TO "FOSTER SOUND
ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL CARRIERS,"
AND THE OTHER OPPOSING INTERESTS.  PP. 166-167. 

(C) THE COMMISSION MADE NO FINDINGS OR ANALYSIS TO JUSTIFY ITS CHOICE
OF REMEDIES AND GAVE NO INDICATION OF THE BASIS ON WHICH IT EXERCISED
ITS EXPERT DISCRETION.  SUCH ADJUDICATORY PRACTICE IS NOT ACCEPTABLE TO
THIS COURT NOR PERMISSILBE UNDER THE ADMINISTRATIVE PROCEDURE ACT.  PP.
167-168. 

(D)  THE COMMISSION ERRED IN DISREGARDING THE SUGGESTION THAT THE
REFUSALS OF THE TRUNK-LINE CARRIERS TO SERVE COULD BE TERMINATED
THROUGH COMPLAINT PROCEDURES, THUS OBVIATING THE NEED FOR ADDITIONAL
SERVICE; AND THAT ERROR CANNOT NOW BE JUSTIFIED ON THE GROUND THAT A
CEASE-AND-DESIST ORDER WOULD HAVE BEEN INEFFECTIVE, SINCE THE
COMMISSION MADE NO FINDINGS TO SUPPORT SUCH A CONCLUSION.  SECURITIES &
EXCHANGE COMM'N V. CHENERY CORP., 332 U.S. 194.  PP. 168-169. 

(E)  MOREOVER, THERE WAS NOT SUBSTANTIAL EVIDENCE OF RECORD UPON
WHICH TO BASE A FINDING THAT COMPLAINT PROCEDURES WOULD HAVE BEEN
INEFFECTIVE, AND THERE WAS EVERY INDICATION AT THE TIME THAT SUCH
PROCEDURES WOULD HAVE BEEN EFFECTIVE UNDER THE LAW AS IT THEN STOOD. 
PP. 169-170. 

2.  IN VIEW OF THE ENACTMENT OF THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959, FOUR MONTHS AFTER THE COMMISSION'S DECISION AND
OVER A YEAR BEFORE THE DISTRICT COURT HANDED DOWN ITS DECISION, THE
DISTRICT COURT SHOULD NOT HAVE AFFIRMED THE COMMISSION'S ORDER; IN THE
EXERCISE OF ITS DISCRETION, IT SHOULD HAVE VACATED THE ORDER AND
REMANDED THE CASE TO THE COMMISSION FOR FURTHER CONSIDERATION IN THE
LIGHT OF CHANGED CIRCUMSTANCES.  PP. 171-172. 

3. UPON REMAND, THE COMMISSION SHOULD BE PARTICULARLY CAREFUL IN ITS
CHOICE OF REMEDY (IF ANY STILL BE NEEDED), BECAUSE OF THE POSSIBLE
EFFECTS OF ITS DECISION ON THE FUNCTIONING OF THE NATIONAL LABOR
RELATIONS POLICY.  PP. 172-174. 

BURLINGTON TRUCK LINES, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THESE ARE DIRECT APPEALS UNDER 28 U.S.C. SEC. 1253 FROM THE JUDGMENT
OF A THREE-JUDGE DISTRICT COURT, 194 F. SUPP. 31 (S.D. ILL.), WHICH
UPHELD AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, 79 M.C.C. 599,
GRANTING A MOTOR COMMON CARRIER APPLICATION.  THIS COURT NOTED PROBABLE
JURISDICTION BECAUSE OF IMPORTANT QUESTIONS RAISED AS TO THE
RELATIONSHIP AND INTERPLAY BETWEEN REMEDIES AVAILABLE UNDER THE
INTERSTATE COMMERCE ACT AND UNDER THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT.  368 U.S. 951. 

APPELLEE NEBRASKA SHORT LINE CARRIERS, INC., IS A NEBRASKA
CORPORATION, ORGANIZED IN JUNE 1956.  ALL OF ITS STOCK IS OWNED BY 12
MOTOR CARRIERS SERVING EASTERN AND CENTRAL NEBRASKA AND INTERCHANGING
INTERSTATE TRAFFIC AT OMAHA AND OTHER GATEWAY POINTS WITH OVER 20
LARGER TRUNK-LINE CARRIERS, AMONG WHOM ARE THE APPELLANT CARRIERS, WITH
WHOM THROUGH-ROUTE, JOINT-RATE, INTERLINE ARRANGEMENTS HAVE BEEN
ESTABLISHED.  SOME OF THE STOCKHOLDER CARRIERS SERVE NEBRASKA
COMMUNITIES WITHOUT OTHER MOTOR CARRIER OR RAIL SERVICE. 

FOR SOME TIME PRIOR TO MAY 1956, THE STOCKHOLDER CARRIERS HAD
RESISTED EFFORTS BY THE TEAMSTERS UNION TO UNIONIZE THEIR OPERATIONS. 
EVENTUALLY, THE UNION SOUGHT TO BRING ECONOMIC PRESSURE TO BEAR UPON
THE STOCKHOLDER CARRIERS BY A SECONDARY BOYCOTT AGAINST THEIR TRAFFIC
THROUGH THE LARGER, UNIONIZED, TRUNK-LINE CARRIERS UPON WHOM THE
STOCKHOLDER CARRIERS WERE DEPENDENT FOR INTERCHANGING TRAFFIC TO AND
FROM POINTS BEYOND NEBRASKA.  THE COLLECTIVE BARGAINING CONTRACT
BETWEEN THE TRUNK-LINE CARRIERS AND THE UNION CONTAINED PROTECTION OF
RIGHTS OR SO-CALLED "HOT CARGO" CLAUSES WHICH RESERVED TO THE UNION AND
ITS MEMBERS "THE RIGHT TO REFUSE TO HANDLE GOODS FROM OR TO ANY FIRM OR
TRUCK" INVOLVED IN ANY CONTROVERSY WITH THE UNION AND PROVIDED THAT IT
SHOULD NOT BE A CAUSE FOR DISCHARGE IF AN EMPLOYEE OF THE CARRIER
REFUSED TO HANDLE "UNFAIR" GOODS.  (FN1) 

IN MAY 1956, SOME OF THE STOCKHOLDER CARRIERS BEGAN EXPERIENCING
DIFFICULTIES IN RECEIVING AND DELIVERING FREIGHT FROM AND TO MANY OF
THEIR NORMAL AND LOGICAL CONNECTIONS AT OMAHA AND, TO SOME EXTENT, AT
SIOUX CITY, LINCOLN, AND GRAND ISLAND.  THE DIFFICULTY CONSISTED
PRIMARILY OF THE REFUSAL ON THE PART OF MANY OF THE LARGER CARRIERS TO
ACCEPT INTERLINE TRAFFIC TENDERED TO THEM BY THE STOCKHOLDER CARRIERS
AND THE REFUSAL TO TURN OVER TO THEM INBOUND TRAFFIC ROUTED OVER THEIR
LINES OR NORMALLY TURNED OVER TO THEM FOR DELIVERY TO ULTIMATE
DESTINATIONS IN NEBRASKA.  THE STOCKHOLDER CARRIERS, SHIPPERS, AND
CONSIGNEES THUS EXPERIENCED CONSIDERABLE DELAY, INCONVENIENCE, AND
UNFORESEEN EXPENSE IN THE MOVEMENT OF TRAFFIC TO AND FROM INTERIOR
NEBRASKA POINTS.  AT THE SAME TIME, HOWEVER, SOME OF THE LARGER
INTERLINING CARRIERS, PARTICULARLY APPELLANTS BURLINGTON TRUCK LINES,
INC., AND SANTA FE TRAIL TRANSPORTATION COMPANY, GENERALLY MAINTAINED
NORMAL INTERLINE RELATIONSHIPS WITH THE STOCKHOLDER CARRIERS. 

THE STOCKHOLDER CARRIERS THEREUPON ORGANIZED SHORT LINE AND ON JUNE
22, 1956, SHORT LINE FILED AN APPLICATION WITH THE INTERSTATE COMMERCE
COMMISSION FOR COMMON CARRIER AUTHORITY TO TRANSPORT COMMODITIES ON A
REGULARLY SCHEDULED BASIS BETWEEN CERTAIN NEBRASKA AND IOWA POINTS AND
POINTS IN OTHER STATES.  A FURTHER APPLICATION FOR OPERATING AUTHORITY
OVER IRREGULAR ROUTES BETWEEN OMAHA AND POINTS IN 32 DIFFERENT STATES
WAS FILED SIX MONTHS LATER.  THE APPLICATIONS WERE ASSIGNED TO TWO
DIFFERENT EXAMINERS, EACH OF WHOM RECOMMENDED THAT THE APPLICATION
BEFORE HIM BE DENIED.  THE COMMISSION STATED THAT "THE PERTINENT FACTS
ARE ACCURATELY AND ADEQUATELY STATED" IN THE EXAMINERS' REPORTS AND
ADOPTED THE STATEMENTS AS ITS OWN (79 M.C.C., AT 605, 608), BUT IT
CONCLUDED THAT THE FIRST APPLICATION SHOULD BE GRANTED IN PART.  (FN2)
THE COMMISSION FOUND THAT ALTHOUGH SERVICE IN THE AREA WAS SATISFACTORY
BEFORE MAY 1956, AFTER THAT DATE THE UNION-INDUCED BOYCOTT OF THE
STOCKHOLDER CARRIERS CAUSED "A SUBSTANTIAL DISRUPTION" AND "SERIOUS
INADEQUACIES IN THE SERVICE AVAILABLE."  79 M.C.C., AT 612, 613. 
ACCORDINGLY, IT FOUND THAT GRANT OF SHORT LINE'S APPLICATION WAS
REQUIRED BY "THE PRESENT AND FUTURE PUBLIC CONVENIENCE AND NECESSITY." 
ID., AT 613.  THE COMMISSION DECLARED THAT IT WAS NOT ATTEMPTING TO
ADJUDICATE A LABOR DISPUTE OR TRENCH UPON THE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD, AND IT CONCEDED ITS LACK OF
JURISDICTION TO LOOK BEYOND THE DUTIES OF CARRIERS TO THE PUBLIC UNDER
THE TERMS OF THE INTERSTATE COMMERCE ACT.  ID., AT 611.  IT STRONGLY
CRITICIZED THE CARRIER APPELLANTS FOR YIELDING TO UNION SECONDARY
BOYCOTT DEMANDS, HOWEVER, AND IT DECLARED THAT THE CARRIERS' FAILURE TO
FULFILL THEIR DUTIES AS COMMON CARRIERS WAS PARTICULARLY INEXCUSABLE
SINCE THERE HAD BEEN NO VIOLENCE OR IMMINENT THREATS OF DANGER TO
PROPERTY OR PERSON.  THE COMMISSION EXPRESSED THE OPINION THAT ALLEGED
"APPREHENSIONS OF CERTAIN OF THE ORGANIZED CARRIERS THAT ANY OPPOSITION
TO THE DEMANDS OF THE UNION WOULD HAVE RESULTED IN REPRISALS AGAINST
THEM" WERE "GREATLY EXAGGERATED," AND IT NOTED THAT SOME OF THE
INTERLINING CARRIERS HAD SUCCESSFULLY CONTINUED TO DEAL WITH THE
STOCKHOLDER CARRIERS, WITH AT LEAST ONE OF THEM ENCOUNTERING NO
DIFFICULTIES WITH ITS EMPLOYEES WHEN IT CHANGED ITS POLICY AND CARRIED
OUT ITS STATUTORY DUTIES AS A COMMON CARRIER AND INTERLINED WITH THE
SHORT LINE CARRIERS.  (FN3)  ID., AT 612. 

FINALLY, THE COMMISSION CONSIDERED THE REMEDY APPROPRIATE TO THE
SITUATION.  SHORT LINE HAD APPLIED FOR OPERATING AUTHORITY UNDER SEC.
207 (CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY).  AS THE
COMMISSION NOTED, THE ACT PROVIDES OTHER MEANS OF CORRECTING
DEFICIENCIES OF SERVICE.  SECTION 204(C) EMPOWERS THE COMMISSION TO
ORDER CARRIERS TO COMPLY WITH THE TRANSPORTATION LAWS, AND THE
COMMISSION MAY ACT UPON COMPLAINT OR UPON ITS OWN MOTION WITHOUT
COMPLAINT, IN EACH CASE AFTER NOTICE AND HEARING, AND SANCTIONS ARE
AVAILABLE TO ENFORCE ITS ORDERS; (FN4) SEC.  212(A) EMPOWERS THE
COMMISSION TO SUSPEND CERTIFICATES FOR FAILURE TO COMPLY WITH DUTIES
UNDER THE ACT.  THE COMMISSION PROCEEDED TO DISPOSE OF THE REMEDY
PROBLEM IN THE FOLLOWING MANNER: 

"WE DO NOT AGREE WITH THOSE OF THE PARTIES WHO INSIST THAT THE
PROCEDURE HERE ADOPTED; NAMELY, THE FILING OF THE INSTANT APPLICATIONS
UNDER THE PROVISIONS OF SECTION 207 OF THE ACT, IS IN ANY MANNER
INAPPROPRIATE.  REGARDLESS OF THE INJECTION OF THE LABOR SITUATION INTO
THE MATTER, THE INSTANT APPLICATIONS ARE BASED UPON CLAIMED
DEFICIENCIES IN THE MOTOR SERVICE AVAILABLE TO THE SHIPPING PUBLIC OF
NEBRASKA.  WHERE, AS HERE, THE EXISTING CARRIERS ARE SHOWN TO HAVE SO
CONDUCTED THEIR OPERATIONS AS TO RESULT IN SERIOUS INADEQUACIES IN THE
SERVICE AVAILABLE TO A LARGE SECTION OF THE PUBLIC, ONE EFFECTIVE
METHOD OF CORRECTING THE SITUATION IS BY THE GRANTING OF AUTHORITY FOR
SUFFICIENT ADDITIONAL SERVICE, AND, IN FACT, WE ARE CHARGED WITH THE
DUTY OF PROCURING SUCH ADDITIONAL FACILITIES AS MAY BE NECESSARY TO
CARRY OUT THE PURPOSES OF THE NATIONAL TRANSPORTATION POLICY.  THE FACT
THAT OTHER REMEDIES ARE AVAILABLE, SUCH AS THE SUGGESTED FILING OF
COMPLAINTS BY THE AGGRIEVED CARRIERS AND SHIPPERS DOES NOT ALTER THE
SITUATION OR DEPRIVE ANY CARRIER OF THE RIGHT TO FOLLOW THE COURSE HERE
CHOSEN."  ID., AT 613. 

THE COMMISSION THEREFORE GRANTED THE APPLICATION.  (FN5) 

THE PROTESTING CARRIERS AND THE AFFECTED UNION SOUGHT JUDICIAL REVIEW
BEFORE A THREE-JUDGE DISTRICT COURT (28 U.S.C. SECS. 1336, 1398, 2321
2325), WHICH UPHELD THE ORDER AS WITHIN THE SCOPE OF THE COMMISSION'S
STATUTORY AUTHORITY, BASED ON ADEQUATE FINDINGS, AND SUPPORTED BY
SUBSTANTIAL EVIDENCE.  194 F. SUPP. 31.  THE COURT REVIEWED THE
EVIDENCE AND CONCLUDED THAT ALTHOUGH THERE WAS "NO DOUBT THAT THEIR
(THE PROTESTING CARRIERS') ABILITY TO PERFORM SERVICE PRIOR TO MAY 1956
WAS ADEQUATE," THE RECORD SHOWED THAT UNION PRESSURE MADE IT INADEQUATE
THEREAFTER.  194 F. SUPP., AT 45.  THE COURT RECOGNIZED THAT A CEASE
AND-DESIST ORDER MIGHT HAVE BEEN UTILIZED, BUT STATED THAT ADDITIONAL
CERTIFICATION WAS ALSO A PERMISSIBLE REMEDY WHICH WAS NOT MADE
UNAVAILABLE MERELY BECAUSE THE REASON FOR INADEQUACY OF SERVICE WAS
THAT "EXISTING CARRIERS WERE SUBORDINATING THEIR PUBLIC SERVICE
OBLIGATIONS TO THEIR COLLECTIVE BARGAINING AGREEMENTS."  ID., AT 54. 

IN REGARD TO THE CHOICE OF REMEDY, THE COURT REJECTED THE CONTENTION
THAT THE PASSAGE OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT
OF 1959, WHICH ADDED SEC. 8(E) TO THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 73 STAT. 543, 29 U.S.C.
(SUPP. III) SEC. 158(E), SOME FOUR MONTHS AFTER THE ENTRY OF THE ORDER,
MOOTED THE CASE BY MAKING THE UNION ACTIVITIES IN INDUCING THE
ORGANIZED CARRIERS TO BOYCOTT THE SHORT LINE STOCKHOLDER CARRIERS
ILLEGAL AND THEREFORE UNLIKELY TO BE RESUMED.  THE DISTRICT COURT
EXPRESSED DOUBTS AS TO WHETHER SEC. 8(E) "EFFECTIVELY OUTLAWS 'HOT
CARGO' CLAUSES," AND MAINTAINED THAT, EVEN IF IT DID, THE COMMISSION'S
ORDER SHOULD STILL STAND.  ID., AT 58.  TO THE UNION'S CONTENTION THAT
GRANT OF A CERTIFICATE HERE INJECTED THE INTERSTATE COMMERCE COMMISSION
INTO THE PROVINCE OF THE NATIONAL LABOR RELATIONS BOARD, OR AT LEAST
UNDERCUT TO SOME EXTENT THE POLICIES OF SEC. 7 OF THE NATIONAL LABOR
RELATIONS ACT, THE COURT REPLIED THAT THE UNION'S FAILURE TO ORGANIZE
THE EMPLOYEES OF THE SHORT LINE CARRIERS "EFFECTIVELY DESTROYED ANY
JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD UNDER THE ACT OF ITS
CREATION."  ID., AT 59.  (FN6)  THE CASE IS NOW BEFORE US ON DIRECT
APPEALS FROM THIS JUDGMENT. 

WE HAVE CONCLUDED THAT THE JUDGMENT OF THE DISTRICT COURT MUST BE
REVERSED AND THE COMMISSION'S ORDER SET ASIDE AS AN IMPROVIDENT
EXERCISE OF ITS DISCRETION.  THE COMMISSION FOUND FROM THE FACTS OF
RECORD THAT THE REFUSALS TO HANDLE INTERCHANGE TRAFFIC AND TO ACCEPT
FREIGHT FROM CERTAIN SHIPPERS (FN7) CAUSED A SUBSTANTIAL DISRUPTION IN
MOTOR SERVICE AND SERIOUS INADEQUACIES IN THE SERVICE AVAILABLE,
DESPITE THE EFFORTS OF SOME OF THE LARGER TRUNK-LINE CARRIERS TO
MAINTAIN NORMAL INTERLINE RELATIONSHIPS.  THERE WAS AMPLE EVIDENCE TO
SUPPORT THESE FINDINGS AND WE DO NOT DISTURB THEM. 

THE DIFFICULTY WITH THE ORDER ARISES IN CONNECTION WITH THE FINDINGS
AND CONCLUSIONS RELEVANT TO THE CHOICE OF REMEDY.  THE ASSUMPTION OF
THE COMMISSION WAS THAT THE DEFICIENCIES OF SERVICE MADE EITHER OF TWO
REMEDIES AVAILABLE - ADDITIONAL CERTIFICATION OR ENTRY OF A CEASE-AND
DESIST ORDER - AND THAT IT HAD UNLIMITED DISCRETION TO APPLY EITHER
REMEDY SIMPLY BECAUSE EITHER MIGHT BE EFFECTIVE.  IT IS UNMISTAKABLY
CLEAR FROM THE OPINION OF THE COMMISSION AND FROM THE FACT-FINDINGS IT
MADE OR ADOPTED, (FN8) THAT THE DISRUPTION IN SERVICE RESULTED SOLELY
FROM REFUSALS TO SERVE, WHICH IN TURN AROSE FROM UNION PRESSURE APPLIED
TO OBTAIN UNION OBJECTIVES.  IT IS EQUALLY CLEAR THAT ABSENT UNION
PRESSURE THERE WOULD HAVE BEEN NO REFUSALS TO SERVE AND THAT IN SUCH
NORMAL CIRCUMSTANCES THE FACILITIES AND THE SERVICES OF THE EXISTING
CARRIERS WERE ADEQUATE.  (FN9) MOREOVER, THE TRUNK-LINE CARRIERS WERE
OPERATING BELOW CAPACITY, (FN10) WERE IN A POSITION AND ANXIOUS TO
TRANSPORT ADDITIONAL TRAFFIC, (FN11) AND HAD BEEN ENJOYING THE
PREVIOUSLY INTERLINED TRAFFIC WHICH THE GRANT WOULD DIVERT TO SHORT
LINE.  (FN12)  IN THIS FACTUAL CONTEXT WE MAY PUT ASIDE AT THE OUTSET
THE AUTHORITY WHICH THE APPELLEES RELY UPON THAT HOLDS THAT ADDITIONAL
CERTIFICATION IS THE NORMAL AND PERMISSIBLE WAY TO DEAL WITH
GENERALIZED INADEQUACY IN SERVICE.  SEE, E.G., DAVIDSON TRANSFER CO. V.
UNITED STATES, 42 F. SUPP. 215, 219-220 (E.D. PA.), AFF'D, 317 U.S.
587.  (FN13)  WHEN, AS HERE, THE PARTICULAR DEVIATIONS FROM AN
OTHERWISE COMPLETELY ADEQUATE SERVICE (WHICH HAS ECONOMIC NEED FOR THE
TRAFFIC) CONSIST SOLELY OF ILLEGAL AND DISCRIMINATORY REFUSALS TO
ACCEPT OR DELIVER TRAFFIC FROM OR TO PARTICULAR CARRIERS OR SHIPPERS,
THE POWERS OF THE COMMISSION UNDER SECS. 204, 212, AND 216 BEAR HEAVILY
ON THE PROPRIETY OF SEC. 207 RELIEF.  AND IN SUCH A CASE THE CHOICE OF
THE CERTIFICATION REMEDY MAY NOT BE AUTOMATIC; IT MUST BE RATIONAL AND
BASED UPON CONSCIOUS CHOICE THAT IN THE CIRCUMSTANCES THE PUBLIC
INTEREST IN "ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE" OUTBALANCES
WHATEVER PUBLIC INTEREST THERE IS IN PROTECTING EXISTING CARRIERS'
REVENUES IN ORDER TO "FOSTER SOUND ECONOMIC CONDITIONS IN
TRANSPORTATION AND AMONG THE SEVERAL CARRIERS" (NATIONAL TRANSPORTATION
POLICY, 49 U.S.C. PRECEDING SECS. 1, 301, 901, 1001), (FN14) AND THE
OTHER OPPOSING INTERESTS. 

THERE ARE NO FINDINGS AND NO ANALYSIS HERE TO JUSTIFY THE CHOICE
MADE, NO INDICATION OF THE BASIS ON WHICH THE COMMISSION EXERCISED ITS
EXPERT DISCRETION.  WE ARE NOT PREPARED TO AND THE ADMINISTRATIVE
PROCEDURE ACT (FN15) WILL NOT PERMIT US TO ACCEPT SUCH ADJUDICATORY
PRACTICE.  SEE SIEGEL CO. V. FEDERAL TRADE COMM'N, 327 U.S. 608, 613
614.  EXPERT DISCRETION IS THE LIFEBLOOD OF THE ADMINISTRATIVE PROCESS,
BUT "UNLESS WE MAKE THE REQUIREMENTS FOR ADMINISTRATIVE ACTION STRICT
AND DEMANDING, EXPERTISE, THE STRENGTH OF MODERN GOVERNMENT, CAN BECOME
A MONSTER WHICH RULES WITH NO PRACTICAL LIMITS ON ITS DISCRETION."  NEW
YORK V. UNITED STATES, 342 U.S. 882, 884 (DISSENTING OPINION). 
"CONGRESS DID NOT PURPORT TO TRANSFER ITS LEGISLATIVE POWER TO THE
UNBOUNDED DISCRETION OF THE REGULATORY BODY."  FEDERAL COMMUNICATIONS
COMM'N V. RCA COMMUNICATIONS, INC., 346 U.S. 86, 90.  THE COMMISSION
MUST EXERCISE ITS DISCRETION UNDER SEC. 207(A) WITHIN THE BOUNDS
EXPRESSED BY THE STANDARD OF "PUBLIC CONVENIENCE AND NECESSITY." 
COMPARE ID., AT 91.  AND FOR THE COURTS TO DETERMINE WHETHER THE AGENCY
HAS DONE SO, IT MUST "DISCLOSE THE BASIS OF ITS ORDER" AND "GIVE CLEAR
INDICATION THAT IT HAS EXERCISED THE DISCRETION WITH WHICH CONGRESS HAS
EMPOWERED IT."  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 197. 
THE AGENCY MUST MAKE FINDINGS THAT SUPPORT ITS DECISION, AND THOSE
FINDINGS MUST BE SUPPORTED BY SUBSTANTIAL EVIDENCE.  INTERSTATE
COMMERCE COMM'N V. J-T TRANSPORT CO., 368 U.S. 81, 93; UNITED STATES V.
CAROLINA CARRIERS CORP., 315 U.S. 475, 488-489; UNITED STATES V.
CHICAGO, M., ST. P.&P.R. CO., 294 U.S. 499, 511.  HERE THE COMMISSION
MADE NO FINDINGS SPECIFICALLY DIRECTED TO THE CHOICE BETWEEN TWO VASTLY
DIFFERENT REMEDIES WITH VASTLY DIFFERENT CONSEQUENCES TO THE CARRIERS
AND THE PUBLIC.  NOR DID IT ARTICULATE ANY RATIONAL CONNECTION BETWEEN
THE FACTS FOUND AND THE CHOICE MADE.  THE COMMISSION ADDRESSED ITSELF
NEITHER TO THE POSSIBLE SHORTCOMINGS OF SEC. 204 PROCEDURES, TO THE
ADVANTAGES OF CERTIFICATION, NOR TO THE SERIOUS OBJECTIONS TO THE
LATTER.  AS WE SHALL PRESENTLY SHOW, THESE OBJECTIONS ARE PARTICULARLY
IMPORTANT IN THE PRESENT CONTEXT AND THEY SHOULD HAVE BEEN TAKEN INTO
ACCOUNT. 

APPELLANTS' POSITION IS AND WAS THAT THE REFUSALS TO SERVE COULD BE
TERMINATED THROUGH COMPLAINT PROCEDURES AND THUS THE NEED FOR
ADDITIONAL SERVICE OBVIATED.  THE COMMISSION WAS, AS INDICATED,
UNRESPONSIVE TO THESE ARGUMENTS IN ITS ORDER, DEEMING THAT THE
AVAILABILITY OF THE OTHER REMEDY "(DID) NOT ALTER THE SITUATION."  THIS
WAS ERROR.  COMMISSION COUNSEL NOW ATTEMPT TO JUSTIFY THE COMMISSION'S
"CHOICE" OF REMEDY ON THE GROUND THAT A CEASE-AND-DESIST ORDER WOULD
HAVE BEEN INEFFECTIVE.  THE SHORT ANSWER TO THIS ATTEMPTED
JUSTIFICATION IS THAT THE COMMISSION DID NOT SO FIND.  SECURITIES &
EXCHANGE COMM'N V. CHENERY CORP., 332 U.S. 194, 196.  THE COURTS MAY
NOT ACCEPT APPELLATE COUNSEL'S POST HOC RATIONALIZATIONS FOR AGENCY
ACTION; CHENERY REQUIRES THAT AN AGENCY'S DISCRETIONARY ORDER BE
UPHELD, IF AT ALL, ON THE SAME BASIS ARTICULATED IN THE ORDER BY THE
AGENCY ITSELF: 

"A SIMPLE BUT FUNDAMENTAL RULE OF ADMINISTRATIVE LAW  ..  ISS  ..
THAAT A REVIEWING COURT, IN DEALING WITH A DETERMINATION OR JUDGMENT
WHICH AN ADMINISTRATIVE AGENCY ALONE IS AUTHORIZED TO MAKE, MUST JUDGE
THE PROPRIETY OF SUCH ACTION SOLELY BY THE GROUNDS INVOKED BY THE
AGENCY.  IF THOSE GROUNDS ARE INADEQUATE OR IMPROPER, THE COURT IS
POWERLESS TO AFFIRM THE ADMINISTRATIVE ACTION  .. ."   IBID. 

FOR THE COURTS TO SUBSTITUTE THEIR OR COUNSEL'S DISCRETION FOR THAT
OF THE COMMISSION IS INCOMPATIBLE WITH THE ORDERLY FUNCTIONING OF THE
PROCESS OF JUDICIAL REVIEW.  THIS IS NOT TO DEPRECATE, BUT TO VINDICATE
(SEE PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 197), THE
ADMINISTRATIVE PROCESS, FOR THE PURPOSE OF THE RULE IS TO AVOID
"PROPELLING THE COURT INTO THE DOMAIN WHICH CONGRESS HAS SET ASIDE
EXCLUSIVELY FOR THE ADMINISTRATIVE AGENCY."  332 U.S., AT 196. 

THE SECOND AND LONGER ANSWER TO THE ATTEMPTED JUSTIFICATION IS THAT
THERE IS NOT SUBSTANTIAL EVIDENCE OF RECORD UPON WHICH TO BASE A
FINDING THAT A CEASE-AND-DESIST ORDER WOULD HAVE BEEN INEFFECTIVE. 
THERE WAS EVERY INDICATION AT THE TIME THAT A CEASE-AND-DESIST ORDER
WOULD RENDER THE DEFICIENCIES IN SERVICE PURELY TEMPORARY PHENOMENA AND
WOULD THUS BE EFFECTIVE IN PROMOTING ADEQUATE, ECONOMICAL, AND
EFFICIENT SERVICE AND IN FOSTERING SOUND ECONOMIC CONDITIONS AMONG THE
CARRIERS AFFECTED. 

IT IS SAID THAT ATTEMPTED COMPLIANCE BY THE UNIONIZED CARRIERS MIGHT
IN SOME WAY "SO AGGRAVATE THEIR LABOR DIFFICULTIES AS TO CAUSE A
COMPLETE CESSATION OF OPERATIONS."  BUT THIS IGNORES THE COMMISSION'S
CONCLUSION THAT CARRIER APPREHENSIONS OF TEAMSTER REPRISALS WERE
EXAGGERATED AND UNWARRANTED.  IT FURTHER IGNORES THE FACT THAT, AS THE
COMMISSION WAS AWARE, THE NATIONAL LABOR RELATIONS BOARD HAD ORDERED
THE UNION TO CEASE BOYCOTTING ANY OF THE STOCKHOLDER CARRIERS BY
APPEALS TO THE EMPLOYEES OF ANY OTHER CARRIER.  INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, LOCAL 554, 116 N.L.R.B. 1891.  TO BE SURE,
THE BOARD HAD NOT ORDERED THE UNION NOT TO MAKE APPEALS DIRECTLY TO THE
TRUNK-LINE CARRIERS.  THE UNION WAS FREE TO MAKE SUCH APPEALS, ABSENT
INDUCEMENT OF EMPLOYEES, AND, AS FAR AS THE LABOR LAWS AND THE
COLLECTIVE AGREEMENT (FN16) WERE CONCERNED, THE EMPLOYER WAS FREE TO
REJECT OR ACCEDE TO SUCH REQUESTS.  BUT IT WAS PRECISELY AT THIS POINT
THAT THE SAND DOOR CASE (LOCAL 1976 V. LABOR BOARD, 357 U.S. 93)
RECOGNIZED THE POWER OF THE COMMISSION TO ENTER CEASE-AND-DESIST ORDERS
AGAINST THE CARRIERS' VIOLATING THE TRANSPORTATION LAW AND THEIR
TARIFFS.  (FN17)  THUS, AS THE APPELLANT UNION ARGUES, (FN18) THERE WAS
NO REASON TO HAVE ASSUMED THAT THE ORDINARY PROCESSES OF THE LAW (FN19)
WERE INCAPABLE OF REMEDYING THE SITUATION.  (FN20) 

BUT DISCUSSION OF THE EFFECTIVENESS OF CEASE-AND-DESIST ORDERS IN
TERMS OF THE JUNE 1959 STATUS OF HOT CARGO ARRANGEMENTS IS NOW LARGELY
ACADEMIC: CONGRESS ADDED SEC. 8(E) TO THE ACT FOUR MONTHS AFTER THE
COMMISSION'S DECISION IN THIS CASE AND OVER A YEAR BEFORE THE DISTRICT
COURT SUSTAINED THE COMMISSION.  UNDER THIS SECTION CONGRESS DECLARED
IT TO "BE AN UNFAIR LABOR PRACTICE FOR ANY LABOR ORGANIZATION AND ANY
EMPLOYER TO ENTER INTO ANY CONTRACT OR AGREEMENT, EXPRESS OR IMPLIED,
WHEREBY SUCH EMPLOYER CEASES OR REFRAINS OR AGREES TO CEASE OR REFRAIN
FROM HANDLING, USING, SELLING, TRANSPORTING OR OTHERWISE DEALING IN ANY
OF THE PRODUCTS OF ANY OTHER EMPLOYER, OR TO CEASE DOING BUSINESS WITH
ANY OTHER PERSON, AND ANY CONTRACT OR AGREEMENT ENTERED INTO HERETOFORE
OR HEARAFTER CONTAINING SUCH AN AGREEMENT SHALL BE TO SUCH EXTENT
UNENFORCIBLE AND VOID  ..  .""  IN THE ABSENCE OF AUTHORITATIVE
JUDICIAL INTERPRETATION OF SEC. 8(E), HOWEVER, THE DISTRICT COURT WAS
UNWILLING TO ATTACH ANY SIGNIFICANCE TO THE NEW LAW IN THE PRESENT
CASE.  IN THIS THE DISTRICT COURT ERRED.  THE PLAIN WORDS OF THE
STATUTE AT THE VERY LEAST RAISED SERIOUS QUESTIONS ABOUT THE LEGALITY
OF DIRECT UNION-EMPLOYER AGREEMENTS TO BOYCOTT ANOTHER EMPLOYER.  NOT
ONLY WOULD THE DELINQUENT INTERLINING CARRIERS IN THIS CASE BE SUBJECT
TO THE INJUNCTIVE AND OTHER PROCESSES OF THE NATIONAL LABOR RELATIONS
BOARD IF THEIR CONDUCT VIOLATED SEC. 8(E), BUT THE UNIONS THEMSELVES
WOULD BE VULNERABLE (FN21) AND THE PRESSURES WHICH GENERATED THE
REFUSALS TO SERVE MIGHT WELL BE EFFECTIVELY REMOVED.  THESE INTERVENING
FACTS SO CHANGED THE COMPLEXION OF THE CASE THAT (EVEN PUTTING ASIDE
THE CONSIDERATIONS DISCUSSED ABOVE) THE REVIEWING EQUITY COURT, IN THE
EXERCISE OF ITS SOUND DISCRETION, SHOULD NOT HAVE AFFIRMED THE ORDER,
AS IT DID, BUT SHOULD HAVE VACATED IT AND REMANDED IT TO THE COMMISSION
FOR FURTHER CONSIDERATION IN THE LIGHT OF THE CHANGED CONDITIONS.  SEE
FORD MOTOR CO. V. LABOR BOARD, 305 U.S. 364, 373-374; WABASH R. CO. V.
PUBLIC SERV. COMM'N, 273 U.S. 126, 130-131; GULF, C.&S.F.R. CO. V.
DENNIS, 224 U.S. 503, 506-509.  (FN22) 

FINALLY, ALTHOUGH WE DO NOT WISH TO FETTER THE COMMISSION'S EXPERT,
DISCRETIONARY POWERS BY SPECIFICALLY PRESCRIBING THAT CEASE-AND-DESIST
ORDER RELIEF BE GRANTED (IF, INDEED, ANY RELIEF IS STILL NEEDED) RATHER
THAN ADDITIONAL CERTIFICATION, NEVERTHELESS THE COMMISSION SHOULD BE
PARTICULARLY CAREFUL IN ITS CHOICE OF REMEDY, AND SHOULD HAVE BEEN
PARTICULARLY CAREFUL, BECAUSE OF THE POSSIBLE EFFECTS OF ITS DECISION
ON THE FUNCTIONING OF THE NATIONAL LABOR RELATIONS POLICY.  THE
COMMISSION ACTS IN A MOST DELICATE AREA HERE, BECAUSE WHATEVER IT DOES
AFFIRMATIVELY (WHETHER IT GRANTS A CERTIFICATE OR ENTERS A CEASE-AND
DESIST ORDER) MAY HAVE IMPORTANT CONSEQUENCES UPON THE COLLECTIVE
BARGAINING PROCESSES BETWEEN THE UNION AND THE EMPLOYER.  THE POLICIES
OF THE INTERSTATE COMMERCE ACT AND THE LABOR ACT NECESSARILY MUST BE
ACCOMODATED, ONE TO THE OTHER.  WRITING BEFORE THE 1959 AMENDMENTS TO
THE LABOR LAW, THIS COURT SAID IN THE SAND DOOR CASE: 

"BUT IT IS SAID THAT THE BOARD IS NOT ENFORCING THE INTERSTATE
COMMERCE ACT OR INTERFERING WITH THE COMMISSION'S ADMINISTRATION OF
THAT STATUTE, BUT SIMPLY INTERPRETING THE PROHIBITIONS OF ITS OWN
STATUTE IN A WAY CONSISTENT WITH THE CARRIER'S OBLIGATIONS UNDER THE
INTERSTATE COMMERCE ACT.  BECAUSE OF THAT ACT A CARRIER CANNOT
EFFECTIVELY CONSENT NOT TO HANDLE THE GOODS OF A SHIPPER  .. .   BUT
THE FACT THAT THE CARRIER'S CONSENT IS NOT EFFECTIVE TO RELIEVE HIM
FROM CERTAIN OBLIGATIONS UNDER THE INTERSTATE COMMERCE ACT DOES NOT
NECESSARILY MEAN THAT IT IS INEFFECTIVE FOR ALL PURPOSES, NOR SHOULD A
DETERMINATION UNDER ONE STATUTE BE MECHANICALLY CARRIED OVER IN THE
INTERPRETATION OF ANOTHER STATUTE INVOLVING SIGNIFICANTLY DIFFERENT
CONSIDERATIONS AND LEGISLATIVE PURPOSES."  357 U.S., AT 110. 

THE COURT CONCLUDED THAT ALTHOUGH "COMMON FACTORS MAY EMERGE IN THE
ADJUDICATION OF THESE QUESTIONS" UNDER THE TWO ACTS BY THE TWO
DIFFERENT AGENCIES, NEVERTHELESS INDEPENDENT CONSIDERATION AND
RESOLUTION WERE POSSIBLE, THE NATIONAL LABOR RELATIONS BOARD DIRECTING
ITSELF TO CONSIDERATION OF WHETHER THE EMPLOYEES VIOLATED THEIR DUTIES
UNDER SEC. 8(B) AND THE INTERSTATE COMMERCE COMMISSION DIRECTING ITS
ATTENTION TO WHETHER THE CARRIER "MAY HAVE FAILED IN HIS OBLIGATIONS
UNDER THE INTERSTATE COMMERCE ACT." 

IMPLICIT IN THIS ANALYSIS IS A RECOGNITION THAT IF EITHER AGENCY IS
NOT CAREFUL IT MAY TRENCH UPON THE OTHER'S JURISDICTION, AND, BECAUSE
OF LACK OF EXPERT COMPETENCE, CONTRAVENE THE NATIONAL POLICY AS TO
TRANSPORTATION OR LABOR RELATIONS.  IN SUCH A CONTEXT, CHOICE OF THE
SWEEPING RELIEF OF CERTIFICATION RATHER THAN THE MORE PRECISE AND
NARROWLY DRAWN CEASE-AND-DESIST ORDER REMEDY WAS IMPROVIDENT, ABSENT A
COMPELLING JUSTIFICATION.  AND THE FACT THAT SEC. 8(E) OF THE ACT NOW
EXPOSES THE EMPLOYER AS WELL AS THE UNION TO LABOR BOARD INJUNCTIVE
PROCESSES ONLY UNDERLINES THE NECESSITY FOR CAREFUL ANALYSIS IN
FASHIONING A REMEDY TO TERMINATE UNLAWFUL ACTION BY DELINQUENT
CARRIERS.  THIS IS NOT TO SAY THAT CIRCUMSTANCES CAN NEVER PERMIT THE
COMMISSION TO AUTHORIZE ADDITIONAL SERVICE TO REMEDY REFUSALS TO SERVE,
BUT THE COMMISSION MUST ACT WITH A DISCRIMINATING AWARENESS OF THE
CONSEQUENCES OF ITS ACTION.  IT HAS NOT DONE SO HERE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED.  THE CASE IS REMANDED
TO IT WITH INSTRUCTIONS TO ENTER AN ORDER ENJOINING, ANNULLING, AND
SETTING ASIDE THE ORDER OF THE INTERSTATE COMMERCE COMMISSION, AND
REMANDING THE CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE HOT CARGO CLAUSE PROVIDED, IN PERTINENT PART: 

"IT SHALL NOT BE A VIOLATION OF THIS AGREEMENT AND IT SHALL NOT BE
CAUSE FOR DISCHARGE IF ANY EMPLOYEE OR EMPLOYEES REFUSE TO GO THROUGH
THE PICKET LINE OF A UNION OR REFUSE TO HANDLE UNFAIR GOODS.  NOR SHALL
THE EXERCISE OF ANY RIGHTS PERMITTED BY LAW BE A VIOLATION OF THIS
AGREEMENT.  THE UNION AND ITS MEMBERS, INDIVIDUALLY AND COLLECTIVELY,
RESERVE THE RIGHT TO REFUSE TO HANDLE GOODS FROM OR TO ANY FIRM OR
TRUCK WHICH IS ENGAGED OR INVOLVED IN ANY CONTROVERSY WITH THIS OR ANY
OTHER UNION; AND RESERVE THE RIGHT TO REFUSE TO ACCEPT FREIGHT FROM OR
TO MAKE PICKUPS FROM, OR DELIVERIES TO ESTABLISHMENTS WHERE PICKET
LINES, STRIKES, WALK-OUTS OR LOCKOUTS EXIST. 

"THE TERM 'UNFAIR GOODS' AS USED IN THIS ARTICLE INCLUDES, BUT IS NOT
LIMITED TO, ANY GOODS OR EQUIPMENT TRANSPORTED, INTERCHANGED, HANDLED,
OR USED BY ANY CARRIER, WHETHER PARTY TO THIS AGREEMENT OR NOT, AT ANY
OF WHOSE TERMINALS OR PLACES OF BUSINESS THERE IS A CONTROVERSY BETWEEN
SUCH CARRIER OR ITS EMPLOYEES ON THE ONE HAND, AND A LABOR UNION ON THE
OTHER HAND; AND SUCH GOODS OR EQUIPMENT SHALL CONTINUE TO BE 'UNFAIR'
WHILE BEING TRANSPORTED, HANDLED OR USED BY INTERCHANGING OR SUCCEEDING
CARRIERS, WHETHER PARTIES TO THIS AGREEMENT OR NOT, UNTIL SUCH
CONTROVERSY IS SETTLED. 

*         *         *         *         * 

"THE INSISTENCE BY ANY EMPLOYER THAT HIS EMPLOYEES) HANDLE UNFAIR
GOODS OR GO THROUGH A PICKET LINE AFTER THEY HAVE ELECTED NOT TO, AND
IF SUCH REFUSAL HAS BEEN APPROVED IN WRITING BY THE RESPONSIBLE
OFFICIALS OF THE CENTRAL STATES DRIVERS COUNCIL, SHALL BE SUFFICIENT
CAUSE FOR AN IMMEDIATE STRIKE OF ALL SUCH EMPLOYER'S OPERATIONS WITHOUT
ANY NEED OF THE UNION TO GO THROUGH THE GRIEVANCE PROCEDURE HEREIN." 

FN2  THE GRANT WAS LIMITED TO AN OMAHA-CHICAGO AND OMAHA-KANSAS CITY
ST. LOUIS ROUTE, FOR TRAFFIC ORIGINATING IN OR DESTINED TO NEBRASKA
POINTS.  79 M.C.C., AT 606, 614.  NO APPELLATE REVIEW HAS BEEN SOUGHT
FOR THE DENIAL OF THE SECOND APPLICATION. 

FN3  APPARENTLY, IN SOME INSTANCES IT WAS NECESSARY TO HANDLE
INTERLINED TRAFFIC BY OFFICIALS OR SUPERVISORY PERSONNEL WHEN EMPLOYEES
REFUSED TO TOUCH IT.  SEE R. 82. 

FN4  SEE SECS. 212(A) (REVOCATION), 222(A) (FINE), 222(B)
(INJUNCTION).  THAT THE INADEQUACY IN SERVICE INVOLVED HERE WAS FIRST
BROUGHT TO THE COMMISSION'S ATTENTION BY APPELLEE'S APPLICATION FOR A
CERTIFICATE IN NO WAY, OF COURSE, LIMITED THE AGENCY'S POWER TO INVOKE
SECS. 204(C), 212, 222. 

FN5  IN THIS CONNECTION THE COMMISSION NOTED THAT IT HAD REFUSED A
GRANT IN A SIMILAR CASE DECIDED CONCURRENTLY WITH THE PRESENT
APPLICATION (GALVESTON TRUCK LINE CORPORATION EXTENSION, 79 M.C.C.
619). THE COMMISSION STATED THAT THE CIRCUMSTANCES THERE WERE DIFFERENT
BECAUSE THE LABOR DIFFICULTIES WHICH HAD LED TO COMMISSION ISSUANCE OF
A CEASE-AND-DESIST ORDER AGAINST CARRIER OBEDIENCE TO HOT CARGO CLAUSES
(GALVESTON TRUCK LINE CORP. V. ADA MOTOR LINES, INC., 73 M.C.C. 617;
SEE NOTE 17, INFRA) HAD "CEASED TO EXIST FOR SOME TIME PRIOR TO THE
HEARING, WHEREAS IN THE INSTANT PROCEEDING SUCH DIFFICULTIES WERE OF
MORE RECENT ORIGIN AND WERE CONTINUING TO BE EXPERIENCED UP TO AND
INCLUDING THE TIME OF THE HEARING."  79 M.C.C., AT 613.  BUT
APPROXIMATELY 21 MONTHS INTERVENED BETWEEN THE EXAMINER'S REPORT AND
THE COMMISSION'S ORDER, AND OVER TWO YEARS BETWEEN HEARINGS AND ORDER. 
DURING AT LEAST 18 MONTHS OF THIS TIME THE CASE APPEARS TO HAVE BEEN
ARGUED TO THE COMMISSION, REMAINING ON THE DOCKET PENDING DECISION. 
SEE 73 M.C.C., AT 617, N. 1.    FN6  COMPARE DUPLEX PRINTING PRESS CO.
V. DEERING, 254 U.S. 443, 471-472.  BUT SEE NATIONAL LABOR RELATIONS
ACT, SECS. 2(3), 9; NORRIS-LAGUARDIA ACT, SEC. 13(C). 

FN7  THERE WERE FINDINGS THAT SECONDARY BOYCOTTS WERE IMPOSED NOT
ONLY AGAINST THE STOCKHOLDER CARRIERS BUT AGAINST CERTAIN SHIPPERS WHO
WERE ENGAGED IN THEIR OWN LABOR DISPUTES. 

FN8  THE COMMISSION ADOPTED THE STATEMENTS OF FACTS IN BOTH
RECOMMENDED REPORTS.  79 M.C.C., AT 605, 608. 

FN9  R. 87-89, 95. 

FN10  R. 54. 

FN11  IBID., R. 95. 

FN12  R. 68-69. 

FN13  AND SEE ATCHISON, T.&S.F.R. CO. V. REDDISH, 368 U.S. 81, 91,
WHERE THE COURT REJECTED THE ARGUMENT THAT COMPLAINT PROCEEDINGS MUST
BE RESORTED TO BEFORE ADDITIONAL OPERATING AUTHORITY COULD BE HAD TO
REPLACE A COMMON CARRIER SERVICE INADEQUATE FOR THE SHIPPERS'
PARTICULARIZED PHYSICAL OR ECONOMIC NEEDS.  THIS CASE, LIKE THE MANY
CASES APPELLEES CITE IN WHICH THE COMMISSION GRANTED THROUGH-ROUTE
CERTIFICATION TO OVERCOME INADEQUACY OF EXISTING JOINT-LINE SERVICE
(E.G., PENN OHIO NEW YORK EXP.  CORP.  EXT. - N.Y., 27 M.C.C. 269;
MALONE FREIGHT LINES, INC., EXT. - TEXTILES, 61 M.C.C. 501; DALLAS &
MAVIS FWDG.  CO. EXT. - MONT., 64 M.C.C.  511; BRASWELL EXT. - CALIF.,
68 M.C.C. 664; KENOSHA CORP. EXT. - KENOSHA, 72 M.C.C. 289), IS CLEARLY
INAPPOSITE HERE, WHERE THERE IS NOTHING INHERENTLY WRONG WITH THE
APPELLANT CARRIERS' SERVICE, EITHER BECAUSE OF ITS PARTICULAR NATURE OR
BECAUSE OF LACK OF CAPACITY, INFREQUENCY OF PICKUPS, DELAYS IN
DELIVERY, OR THE LIKE. 

FN14  IN THIS CONNECTION IT SHOULD BE NOTED THAT CERTIFICATION OF
SHORT LINE WOULD DIVERT TRAFFIC BOTH FROM DELINQUENT TRUNK-LINE
CARRIERS AND FROM CARRIERS WHO DID NOT VIOLATE THEIR DUTIES BY ACCEDING
TO THE SECONDARY BOYCOTT, E.G., BURLINGTON AND SANTA FE.  SEE 79
M.C.C., AT 603. 

FN15  SECTION 8(B), 5 U.S.C. SEC. 1007(B), PROVIDES THAT ALL
DECISIONS SHALL "INCLUDE A STATEMENT OF  ..  FIINDINGS AND CONCLUSIONS,
AS WELL AS THE REASONS OR BASIS THEREFORE, UPON ALL THE MATERIAL ISSUES
OF FACT, LAW, OR DISCRETION PRESENTED ON THE RECORD." 

FN16  SEE NOTE 1, SUPRA, SETTING FORTH THE RELEVANT PROVISIONS, UNDER
WHICH THE EMPLOYEES RESERVED THE RIGHT TO REFUSE TO HANDLE HOT CARGO,
BUT UNDER WHICH THE EMPLOYER WAS LEFT TO HIS OWN DEVICES.  CF. NOTE 3,
SUPRA. 

FN17  THE COURT CITED WITH APPROVAL THE FIRST GALVESTON CASE
(GALVESTON TRUCK LINE CORP. V. ADA MOTOR LINES, INC., 73 M.C.C. 617),
IN WHICH THE COMMISSION ENTERED A CEASE-AND-DESIST ORDER AGAINST
CARRIER OBEDIENCE TO HOT CARGO CLAUSES.  357 U.S., AT 109-110. 

FN18  THE UNION CONTENDS IN ITS BRIEF AND WE AGREE THAT THE SEC.
212(A) COMPLAINT PROCEDURE, IF FOLLOWED BY THE STOCKHOLDER CARRIERS,
"WOULD HAVE PROVIDED A MORE ADEQUATE REMEDY" AT THE TIME THE CASE WAS
BEFORE THE COMMISSION IN 1956-1959. 

FN19  IT IS FURTHER CONTENDED, BUT WE NEED NOT CONSIDER IT HERE, THAT
THE EFFICACY OF A CEASE-AND-DESIST ORDER IS SEVERELY LIMITED BY THE
AGENCY'S SELF-IMPOSED LIMITATION AGAINST ORDERING CARRIERS TO CEASE
FROM DISCRIMINATORILY REFUSING TO INTERLINE AT JOINT RATES.  BUT CF.
DIXIE CARRIERS, INC., V. UNITED STATES, 351 U.S. 56; INTERSTATE
COMMERCE COMM'N V. MECHLING, 330 U.S. 567.  THE COMMISSION DID NOT
FIND, NOR COULD IT HAVE FOUND ON THIS RECORD, THAT THE PROTESTING
CARRIERS WERE LIKELY TO REFUSE TO INTERLINE WITH THE STOCKHOLDER
CARRIERS EXCEPT AT DISCRIMINATORILY HIGHER, COMBINATION RATES. 

FN20  WE DO NOT IMPLY THAT SERVICE DEFICIENCIES OF THE KIND FOUND IN
THIS RECORD COULD NEVER JUSTIFY THE ISSUANCE OF PERMANENT OPERATING
AUTHORITY.  A TOTALLY DIFFERENT CASE MIGHT BE PRESENTED IF OTHER
REMEDIAL ACTION BY THE COMMISSION AND THE BOARD PROVED FRUITLESS,
HOPELESSLY TIME-CONSUMING, OR OTHERWISE INADEQUATE TO TERMINATE THE
INTERRUPTIONS IN SERVICE.  NOR DO WE INTEND TO PASS UPON THE
COMMISSION'S DISCRETION UNDER SEC. 210A TO PROVIDE TEMPORARY AUTHORITY,
PENDING DETERMINATION OF AN APPLICATION FOR AUTHORITY OR CEASE-AND
DESIST ORDER, OR AS AN ALTERNATIVE TO PERMANENT AUTHORITY TO REMEDY
SERVICE DEFICIENCIES OF THE KIND PRESENT HERE.  SEE PAN-ATLANTIC S.S.
CORP. V. ATLANTIC COAST LINE R. CO., 353 U.S. 436. 

FN21  FOR THE VIEW OF THE NATIONAL LABOR RELATIONS BOARD, SEE
AMALGAMATED LITHOGRAPHERS OF AMERICA (IND.), 130 N.L.R.B. 985;
AMALGAMATED LITHOGRAPHERS OF AMERICA, 130 N.L.R.B. 968, AFF'D, 301 F.2D
20 (C.A. 5TH CIR.); AMERICAN FEED CO., 129 N.L.R.B. 321. 

FN22  THIS WAS, OF COURSE, THE DISTRICT COURT'S, AND NOT THE
COMMISSION'S, ERROR. 

MR. JUSTICE BLACK, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN THE COURT'S JUDGMENT SETTING ASIDE THE COMMISSION'S ORDER
GRANTING A PERMANENT CERTIFICATE TO A NEW CARRIER TO COMPETE WITH
EXISTING CARRIERS WHO BUT FOR TEMPORARY INTERRUPTIONS CAUSED BY LAWFUL
LABOR UNION ACTIVITIES WOULD ADEQUATELY MEET THE NEEDS OF COMMERCE.  I
DO NOT CONCUR, HOWEVER, IN THE REMAND TO THE COMMISSION FOR FURTHER
PROCEEDINGS.  CONGRESS HAS VESTED POWER TO REGULATE THE EMPLOYER
EMPLOYEE RELATIONSHIP IN THE NATIONAL LABOR RELATIONS BOARD, NOT IN THE
INTERSTATE COMMERCE COMMISSION, AND I THINK THE COMMISSION'S GRANT OF A
PERMANENT CERTIFICATE HERE, WHICH STEMS WHOLLY FROM TEMPORARY
TRANSPORTATION DELAYS OWING TO A LABOR DISPUTE WITHIN THE LABOR BOARD'S
JURISDICTION AND WHICH IN EFFECT PUNISHES CARRIERS FOR HONORING THEIR
THEN LAWFUL COLLECTIVE BARGAINING CONTRACTS, AMOUNTS TO AN
IMPERMISSIBLE ENCROACHMENT ON THE BOARD'S DOMAIN.  WE ARE NOT CALLED
UPON AT THIS TIME TO DECIDE WHETHER THE COMMISSION IS WHOLLY WITHOUT
POWER UNDER ANY AND ALL CIRCUMSTANCES TO GRANT TEMPORARY RELIEF FROM A
TEMPORARY STOPPAGE OF COMMERCE IN ORDER TO REMEDY ACUTE EMERGENCY
SITUATIONS SUCH, FOR ILLUSTRATION, AS A SHORTAGE OF FOOD OR SUPPLIES
URGENTLY NEEDED IN PARTICULAR LOCALITIES.  IT WILL BE TIME ENOUGH TO
DECIDE WHAT ARE THE POWERS OF THE COMMISSION TO MEET SUCH SITUATIONS
WHEN THEY ARISE; IT IS CONCEDED THAT THEY ARE NOT PRESENTED IN THIS
CASE. 

SINCE IT IS MY VIEW THAT UNDER THE FACTS HERE THE COMMISSION HAS NO
POWER TO GRANT A PERMANENT CERTIFICATE TO A COMPETITOR, I SEE NO REASON
TO DIRECT THAT THIS MATTER BE REFERRED BACK TO THE COMMISSION FOR
FURTHER PROCEEDINGS.  SUCH A REMAND ASSUMES THAT THERE IS SOME FURTHER
ACTION BY WAY OF A CEASE-AND-DESIST ORDER THE COMMISSION CAN OR SHOULD
TAKE.  MY VIEW IS THAT THE FACTS IN THIS RECORD PROVIDE NO POSSIBLE
BASIS FOR PERMITTING THE COMMISSION TO ORDER THE CARRIERS TO CEASE AND
DESIST FROM CARRYING OUT THEIR AGREEMENT WITH THE UNIONS.  NOTHING IN
THE INTERSTATE COMMERCE ACT GIVES THE COMMISSION POWER TO PROHIBIT
CARRIERS OR UNIONS UNDER THE CIRCUMSTANCES SHOWN BY THIS RECORD FROM
DOING THAT WHICH THE LABOR ACT PERMITS THEM TO DO.  MOREOVER, AS THE
COURT POINTS OUT, FOUR MONTHS AFTER THE COMMISSION'S ORDER CONGRESS
OUTLAWED THE KIND OF CONDUCT WHICH HERE INTERFERED WITH
TRANSPORTATION.  SINCE CONGRESS HAS, BY THIS ENACTMENT, SO CLEARLY
TAKEN THIS MATTER IN HAND IN A WAY THAT DOES NOT RELY FOR ENFORCEMENT
ON THE INTERSTATE COMMERCE COMMISSION, THE OLD COMMISSION PROCEEDINGS
HAVE ALL THE EARMARKS OF MOOTNESS, WHETHER TECHNICALLY MOOT OR NOT.  IF
THE UNION OR THE TRUCK LINES SHOULD HEREAFTER VIOLATE THIS NEW LAW THE
LABOR BOARD, BACKED BY THE COURTS, IS VESTED WITH AMPLE POWER TO FORCE
BOTH CARRIERS AND UNIONS TO OBEY THAT LAW.  THE INTERSTATE COMMERCE
COMMISSION HAS ENOUGH TO DO WITHIN ITS CONGRESSIONALLY APPOINTED FIELD
WITHOUT STEPPING OVER INTO THE FIELD OF LABOR REGULATION.  THE
COMMISSION SHOULD NO MORE THAN A STATE* INVADE REGULATORY TERRITORY
CONGRESS HAS PREEMPTED FOR AGENCIES OF ITS OWN CHOICE. 

* CF. SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236
(1959). 

MR. JUSTICE CLARK, CONCURRING IN THE RESULT. 

FOUR MONTHS AFTER ENTRY OF THE COMMISSION'S ORDER CONGRESS ENACTED
SEC. 8(E) AS AN AMENDMENT TO THE NATIONAL LABOR RELATIONS ACT, 29
U.S.C. (SUPP. III) SEC. 158(E).  SINCE THE LANGUAGE OF THAT SECTION
RAISED SERIOUS QUESTIONS AS TO THE LEGALITY OF THE UNIONS'"HOT CARGO"
PRESSURES, WHICH IN TURN RAISED QUESTIONS AS TO ANY CONTINUATION OF THE
"SUBSTANTIAL DISRUPTION" IN SERVICE, IT APPEARS TO ME THAT THE DISTRICT
COURT SHOULD HAVE VACATED THE ORDER AND REMANDED THE CASE TO THE
COMMISSION FOR RECONSIDERATION IN LIGHT OF THE LIKELIHOOD OF CHANGED
CIRCUMSTANCES.  THE GRANT OF PERMANENT CERTIFICATION TO A NEW CARRIER
IN AN AREA WHERE THERE ARE EXISTING CERTIFICATIONS IS A DRASTIC REMEDY
TO WHICH RESORT SHOULD NOT BE MADE EXCEPT IN THE MOST COMPELLING
CIRCUMSTANCES. 

FOR THIS REASON I CONCUR IN THE COURT'S REVERSAL AND REMAND TO THE
DISTRICT COURT.  IN VIEW OF THE LAPSE OF TIME AND THE FACT THAT THE
CONDUCT WHICH CAUSED THE DISRUPTION OF SERVICE HAS BEEN OUTLAWED* BY
CONGRESS, HOWEVER, IT APPEARS THAT THE ISSUE HAS BEEN MOOTED, AND THE
COMMISSION MAY DETERMINE THAT FURTHER PROCEEDINGS WOULD SERVE NO
PURPOSE. 

*ALTHOUGH THE EFFECTIVENESS OF THE SEC. 8(E) BAN ON "HOT CARGO"
CLAUSES MAY HAVE BEEN SUBJECT TO DOUBT WHEN THE DISTRICT COURT
ADJUDICATED THIS CASE, SUBSEQUENT CASES TEND TO REMOVE ANY SUCH DOUBT. 
SEE, E.G., LABOR BOARD V. LOCAL 294, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, 298 F.2D 105 (C.A.2D CIR. 1961). 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE BRENNAN JOIN, CONCURRING. 

I JOIN IN THE OPINION AND ADD ONLY A FEW WORDS TO STATE MY CONVICTION
THAT THE "DISCRIMINATING AWARENESS OF THE CONSEQUENCES OF ITS ACTION"
REQUIRED OF THE COMMISSION BY THE OPINION, INEVITABLY MUST LEAD, IF ANY
RELIEF IS NOW WARRANTED (WHICH I DOUBT), TO A REJECTION OF THE REMEDY
OF ADDITIONAL CERTIFICATION IN FAVOR OF AN APPROPRIATELY LIMITED CEASE
AND-DESIST ORDER. 

AS THE MATTER WAS PRESENTED TO THE COMMISSION AND TO THE DISTRICT
COURT, THE ADDITIONAL CERTIFICATION, AS THE FACTS HERE PLAINLY
DEMONSTRATE, INVOLVED THE COMMISSION IN INTERVENTION IN THE UNDERLYING
LABOR DISPUTE TO A DEGREE UNDULY TRENCHING UPON THE LABOR BOARD'S
JURISDICTION AND THE RIGHTS AND DUTIES OF THE AFFECTED PARTIES.  MOST
CERTAINLY AFTER THE 1959 AMENDMENTS TO THE LABOR LAW, THE COMMISSION,
HAD THE CASE THEN BEEN REMANDED TO IT BY THE DISTRICT COURT AS IT
SHOULD HAVE BEEN, COULD HAVE ENTERED A CEASE-AND-DESIST ORDER UNDER
WHICH NO CONFLICT COULD OR WOULD HAVE ARISEN BETWEEN THE I.C.C. AND THE
N.L.R.B. IN THE RESPECTIVE EXERCISE OF THEIR POWERS AND IN THE
DISCHARGE OF THEIR RESPONSIBILITIES.  SUCH A CEASE-AND-DESIST ORDER
SHOULD HAVE BEEN APPROPRIATELY LIMITED TO REQUIRING THE CARRIERS TO
PROVIDE SERVICE IN A MANNER AND TO THE EXTENT COMPATIBLE WITH THEIR
LABOR AGREEMENTS AND WITH BOTH THE CARRIERS' AND THE UNION'S RIGHTS AND
DUTIES UNDER FEDERAL LABOR LAW.  THAT SUCH AN ORDER WOULD HAVE BEEN
SUFFICIENT IN PRACTICAL EFFECT IS DEMONSTRATED BY THE FACT THAT BOTH
BURLINGTON AND SANTA FE, PARTIES TO THE HOT CARGO AGREEMENTS, WERE ABLE
TO CARRY OUT THEIR DUTIES UNDER THE MOTOR CARRIER ACT WITHOUT CREATING
ANY SERIOUS PROBLEMS UNDER THEIR UNION AGREEMENTS OR UNDER THE NATIONAL
LABOR RELATIONS ACT.  THIS BEING SO IN THE ABSENCE OF A CEASE-AND
DESIST ORDER, IT IS DIFFICULT TO UNDERSTAND WHY ENTRY OF SUCH AN ORDER
AGAINST THE CARRIERS WOULD HAVE BEEN INEFFECTIVE.



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