Burlington Truck Lines, Inc. v. United States/Concurrence Clark

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), 29 U.S.C.A. § 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.

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.