Because of a labor dispute, arrangements between nonunionized
shortline motor carriers in Nebraska for the interchange of traffic
with unionized trunkline 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 trunkline 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 §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 trunkline 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.
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. 371 U. S.
1. The Commission's order must be set aside as an improvident
exercise of its discretion as to the choice of remedies. Pp.
371 U. S.
Page 371 U. S. 157
(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 §§204, 212, and 216
bear heavily on the propriety of relief under § 207. Pp.
371 U. S.
(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. 371 U. S.
(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 permissible under the Administrative
Procedure Act. Pp. 371 U. S.
(d) The Commission erred in disregarding the suggestion that the
refusals of the trunkline 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
371 U. S.
(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. 371 U. S.
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.
371 U. S.
Page 371 U. S. 158
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. 371 U. S.
reversed, and cause remanded.
MR. JUSTICE WHITE delivered the opinion of the Court.
These are direct appeals under 28 U.S.C. § 1253, from the
judgment of a three-judge District Court, 194 F.
(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. 49 U.S.C.A. § 1 et seq.
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
Page 371 U. S. 159
Omaha and other gateway points with over 20 larger trunkline
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 too 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, trunkline
carriers upon whom the stockholder carriers were dependent for
interchanging traffic to and from points beyond Nebraska. The
collective bargaining contract between the trunkline 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. [Footnote
Page 371 U. S. 160
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
Page 371 U. S. 161
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. [Footnote 2
] 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
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.
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
Page 371 U. S. 162
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. [Footnote 3
Finally, the Commission considered the remedy appropriate to the
situation. Short Line had applied for operating authority under §
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; [Footnote 4
] § 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
"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
Page 371 U. S. 163
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."
The Commission therefore granted the application. [Footnote 5
The protesting carriers and the affected union sought judicial
review before a three-judge District Court (28 U.S.C. §§ 1336,
1398, 2321-2325), which upheld the order as within the scope of the
Page 371 U. S. 164
authority, based on adequate findings, and supported by
substantial evidence. 194 F.
. 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 195 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."
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 § 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) § 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 § 8(e)
"effectively outlaws "hot cargo" clauses," and maintained that,
even if it did, the Commission's order should still stand.
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 § 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."
Page 371 U. S. 165
at 59. [Footnote
] The case is now before us on direct appeals from this
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 [Footnote 7
] caused a substantial disruption in motor
service and serious inadequacies in the service available, despite
the efforts of some of the larger trunkline 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 factfindings it made or adopted [Footnote 8
] 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,
Page 371 U. S. 166
the facilities and the services of the existing carriers were
adequate. [Footnote 9
Moreover, the trunkline carriers were operating below capacity,
] were in a
position and anxious to transport additional traffic, [Footnote 11
] and had been enjoying
the previously interlined traffic which the grant would divert to
Short Line. [Footnote 12
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.
, 219-220 (E.D.Pa.), aff'd,
317 U.S. 587. [Footnote 13
] 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
§§ 204, 212, and 216 bear heavily on the propriety of § 207 relief.
And, in such a case, the choice of the certification remedy may not
Page 371 U. S. 167
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 §§
1, 301, 901, 1001), [Footnote
] 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 [Footnote 15
] will not permit us to accept such
adjudicatory practice. See Siegel Co. v. Federal Trade
Comm'n, 327 U. S. 608
327 U. S.
-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
New York v. United States, 342 U.
, 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.
, 346 U. S. 90
The Commission must exercise its discretion under § 207(a) within
the bounds expressed by the standard of "public convenience and
necessity." Compare id.
at 346 U. S. 91
And for the courts
Page 371 U. S. 168
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.
, 313 U. S. 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.
, 368 U. S. 93
United States v. Carolina Freight Carriers Corp.,
315 U. S. 475
315 U. S.
-489; United States v. Chicago, M., St. P. &
P. R. Co., 294 U. S. 499
294 U. S. 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 § 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
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
332 U. S. 196
The courts may not accept appellate counsel's post hoc
rationalizations for agency action; Chenery
Page 371 U. S. 169
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 . . . is
. . . that 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. . .
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
313 U. S.
), the administrative process, for the purpose of the
rule is to avoid "propel[ling] the court into the domain which
Congress has set aside exclusively for the administrative agency."
332 U.S. at 332 U. S.
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
Page 371 U. S. 170
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,
N.L.R.B.1891. To be sure, the Board had not ordered the union not
to make appeals directly to the trunkline carriers. The union was
free to make such appeals, absent inducement of employees, and, as
far as the labor laws and the collective agreement [Footnote 16
] 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. [Footnote 17
Thus, as the appellant union argues, [Footnote 18
] there was no reason to have assumed that the
ordinary processes of the law [Footnote 19
] were incapable of remedying the situation.
Page 371 U. S. 171
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 § 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 hereafter containing such an
agreement shall be to such extent unenforceable and void. . .
In the absence of authoritative judicial interpretation of §
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
Page 371 U. S. 172
§ 8(e), but the unions themselves would be vulnerable, [Footnote 21
] 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
305 U. S.
-374; Wabash R. Co. v. Public Serv. Comm'n,
273 U. S. 126
273 U. S.
-131; Gulf, C. & S.F. R. Co. v. Dennis,
224 U. S. 503
224 U. S.
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 accommodated, one to the
Page 371 U. S. 173
Writing before the 1959 amendments to the labor law, this Court
Court said in the Sand Door
"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
357 U.S. at 357 U. S. 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 § 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
Page 371 U. S. 174
drawn cease and desist order remedy, was improvident absent a
compelling justification. And the fact that § 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
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.
* 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.
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 lock-outs 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 employee[s] 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."
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.
Apparently, in some instances it was necessary to handle
interlined traffic by officials or supervisory personnel when
employees refused to touch it. See
§§ 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 §§ 204(c), 212, 222.
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
"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.
Compare Duplex Printing Press Co. v. Deering,
254 U. S. 443
254 U. S.
-472. But see
National Labor Relations Act,
§§ 2(3), 9; Norris-LaGuardia Act, § 13(c).
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.
The Commission adopted the statements of facts in both
recommended reports. 79 M.C.C. at 605, 608.
R. 87-89, 95.
And see Atchison, T. & S.F. R. Co. v. Reddish,
368 U. S. 81
368 U. S. 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.
27 M.C.C. 269; Malone Freight Lines, Inc.,
61 M.C.C. 501; Dallas & Mavis Fwdg. Co.
64 M.C.C. 511; Braswell Ext.-Calif.,
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.
In this connection, it should be noted that certification of
Short Line would divert traffic both from delinquent trunkline
carriers and from carriers who did not violate their duties by
acceding to the secondary boycott, e.g.,
Santa Fe. See
79 M.C.C. at 603.
Section 8(b), 5 U.S.C. § 1007(b), provides that all decisions
"include a statement of . . . findings and conclusions, as well
as the reasons or basis therefor, upon all the material issues of
fact, law, or discretion presented on the record."
See note 1
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.
The Court cited with approval the first Galveston
(Galveston Truck Line Corp. v. Ada Motor Lines, Inc.,
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
357 U. S.
The union contends in its brief, and we agree, that the § 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.
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.
; Interstate Commerce Comm'n v. Mechling,
330 U. S. 567
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,
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 § 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
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,
301 F.2d 20 (C.A.5th Cir.); American Feed
129 N.L.R.B. 321.
This was, of course, the District Court's, and not the
MR. JUSTICE BLACK, concurring in part and dissenting in
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
Page 371 U. S. 175
collective bargaining contracts, amounts to an impermissible
encroachment on that 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 concluded 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.
Page 371 U. S. 176
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
MR. JUSTICE CLARK, concurring in the result.
Four months after entry of the Commission's order, Congress
enacted § 8(e) as an amendment to the National Labor Relations Act,
29 U.S.C. (Supp. III) § 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 § 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.,
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 ICC and the NLRB 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.