that their failure to deliver shipments in their possession was excusable by virtue of the following provision in their bills of lading: Except in case of negligence of the carrier or partly in possession (and the burden to prove freedom from such negligence shall be on the carrier or partly in possession), the carrier or party in possession shall not be liable for loss, damage, or delay occurring while the property is stopped and held in transit upon the request of the shipper, owner or party entitled to make such request, or resulting from a defect or vice in the property, or for country damage to cotton, or from riots or strikes. [Emphasis supplied.]

In Montgomery Ward & Co., Inc., v. Consolidated Freightways, Inc., supra, decided concurrently herewith, we discussed fully the duties and obligations to the general public of common carriers when subject to interference by a strike or labor dispute. Therein we found that it was not unlawful for common carriers of property to fail to serve a particular shipper when the facts and circumstances showed that they were physically prevented from performing the service because of a strike at the complainant's plant for which the carriers were not responsible, and the holding out of the carriers excepted service under such circumstances.

In the instant proceedings, however, there was no strike. All parties concede that the picket line was established solely because the complainant had transferred its patronage to another carrier. No dispute existed between the complainant and its employees or between the defendants and their employees. There is no evidence that the picket line was authorized by formal action of any local union or of the Brotherhood. We have not been referred to any authority which holds that it is a legitimate union activity to picket for the sole purpose of forcing a shipper to patronize a particular carrier. In the circumstances, the picket line does not appear to have been that of “a striking union." A picket line is not inviolate. A witness for one

In the International Teamster, volume 39, No. 7, June 1942, the official magazine of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Daniel J. Tobin, general president of the Brotherhood, in an editorial relative to sympathetic strikes and the crossing of picket lines, stated, in part, as follows:

"Sometimes we are inclined to think that many of our members haven't the backbone to cross what we recognize as illegal picket lines.

"Yes, I know many of our unions have a clause in their contracts which reads that it shall not be considered a violation of the agreement to refuse to deliver goods where there is labor trouble.

"Let me say now, unless the International Union orders you not to go through picket lines, that clause must be set aside during the period of the war.

"Even in non-defense industries every means within your power should be used before you stop work. But the so-called picket line, since the passage of the Wagner Act, in many instances can be honestly called an organizing racket that isn't founded on legitimate trade unionism. I have repeatedly said that you must not recognize a picket line unless you are authorized to do so by the International Union."

of the defendants stated that his company had gone through picket lines with the permission of the union. Upon this record it has not been shown that the defendants exercised reasonable diligence to overcome the obstacles interposed to their service, or that they made a reasonable attempt to serve the complainant and were physically prevented from doing so. There is no substantial evidence of unjust discrimination, or undue or unreasonable preference or advantage.

We find that the failure or refusal of the defendants to pick up interstate freight tendered by complainant and to deliver interstate freight consigned to complainant, during the period from July 1, 1941, to January 30, 1942, was unlawful, particularly with respect to the failure or refusal to provide adequate service, to observe just and reasonable practices, and to comply with the provisions of their tariffs lawfully on file with this Commission, all in violation of section 216 of the act.

An order will be entered dismissing the complaints in No. MC-C306 (Sub-No. 4), No. MC-C-306 (Sub-No. 6), and No. MCC-306 (Sub-No. 9), and requiring the other defendants to cease and desist from the practices herein found unlawful.

PATTERSON, Commissioner, dissenting:

There is no difference in the substantial facts in this case and in Montgomery Ward & Co., Inc., v. Consolidated Freightways, Inc., supra, decided concurrently herewith (No. MC-C-268). In each case, there was a picket line established at complainant's plant through which the employees of defendants refused to pass to receive or deliver freight. In each, defendants were not parties to or in any manner responsible for the labor controversy that resulted in the establishment of the picket line. In each, defendants were physically unable to pick up or deliver freight beyond the picket line. In each, if they had attempted to go through the picket line, they would have become involved in a labor controversy with their employees.

The majority distinguish the two cases solely on the ground that in the Freightways case there was a strike, which absolved those defendants from rendering service to complainant, while here there was no strike and accordingly these defendants were not so absoived. This difference seems to me insignificant considering that here the employees of defendants refused to pass through a picket line established by members of their own local union, which union had at the time almost completely unionized the truck drivers. in the Kansas City area. For defendants to have attempted to force their equipment through the picket line with nonunion drivers unquestionably would have involved them in a labor dispute with their

employees and prevented rendition of service to countless shippers. Under such circumstances, it seems. to me wholly unnecessary to compel these defendants to force a showdown between themselves and their employees, the calling of a strike, and an effort to obtain other employees after the strike is called before finding that they were relieved of their lawful duty to transport, which is the effect of the majority findings.

42 M. C. C.

No. MC-89913 (SUB-No. 15)

FRISCO TRANSPORTATION COMPANY EXTENSION OF

OPERATIONS-MISSOURI-ARKANSAS

Submitted November 2, 1942. Decided May 11, 1943

Public convenience and necessity found to require operation, subject to certain conditions, by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities, with certain exceptions, over specified routes, between points in Missouri and Arkansas, serving points which are stations on the rail lines of the St. Louis-San Francisco Railway Company. Issuance of a certificate, subject to conditions, approved upon compliance by applicant with certain requirements, and application in all other respects denied.

M. G. Roberts, J. E. McCullough, and A. J. Baumann for applicant. John S. Mosby, James W. Wrape, B. W. LaTourette, B. F. Batts, George W. Holmes, J. E. Dimond, Austin C. Knetzger, Randolph H. Weber, L. E. Wunderlich, and D. C. Gerharter for protestants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON

BY DIVISION 5:

Exceptions were filed by protestant motor carriers to the recommended order of the joint board, and applicant replied. Our conclusions differ slightly from those recommended.

By application filed August 14, 1941, as amended, Frisco Transportation Company, a corporation, of St. Louis, Mo., and a subsidiary of the St. Louis-San Francisco Railway Company (J. M. Kurn and John G. Lonsdale, trustees), hereinafter called the railway, seeks a certificate of public convenience and necessity authorizing extension of operation as a common carrier by motor vehicle of general commodities, with certain exceptions, between St. Louis, Mo., and Datto, Leachville, and Blytheville, Ark., over regular routes, serving intermediate and off-route points which are stations on the rail lines of the railway in performing (1) an unrestricted service and (2), in the alternative, a substituted service for the railway. A number of rail and motor carriers oppose the application.

The joint board found that public convenience and necessity require the proposed substituted service over the routes and serving the points shown in the appendix hereto, and recommended the issuance of a

certificate to applicant subject to certain conditions so limiting the service, including a key-point condition 3 which reads as follows:

3. No shipment shall be transported by applicant as a common carrier by motor vehicle between any of the following points: St. Louis, Chaffee, and Hayti, Mo., and Blytheville, Ark.

Consideration has been given to the entire record in the proceeding. The facts stated in the recommended report, upon which the joint board based its recommended findings and to which no exceptions were filed, need not be restated, and we adopt the findings of the joint board except as modified herein. We shall confine our discussion to the matters to which exceptions are directed and to certain other matters hereinafter mentioned.

The authority recommended by the joint board is limited so as to authorize the performance of a motor-vehicle service as a substitute for local way freight train service, in the handling of less-than-carload traffic of the railway to and from points on its rail lines in what is known as the River division of the railway. The traffic which applicant will handle is rail traffic moving at rail rates and on rail billing and which is at present transported in lightly loaded freight cars in local way freight train service which is slow and costly to operate. Such a service is but the substitution of a more efficient for a less efficient means of service in performing the railway's undertaking to transport. It will result in a more frequent and faster service for patrons of the railway and, at the same time, will result in a more economical service as well as release considerable boxcar equipment which can be used to better advantage in the rail service. That it will serve the public convenience and necessity is clear. Protestants do not deny this, but express the view that, as a matter of policy, the application should be denied in its entirety, thus requiring the railway to utilize the services of existing motor carriers if the anticipated benefits are to be accomplished. A similar contention was raised and fully discussed in Kansas City S. Transport Co., Inc., Com. Car. Application, 28 M. C. C. 5, wherein the Commission authorized the issuance of certificates to certain railroads or their subsidiaries to perform the same character of service on substantially similar facts. Protestants point to nothing in the present record which would warrant a different conclusion here.

Protestants seriously contend, however, that, if operating rights are granted to applicant, they should be restricted as in the case cited. In this connection, they point out that the recommended condition 3 merely prohibits the handling of shipments by motor vehicle between St. Louis, Chaffee, Hayti, and Blytheville and not to or through or from more than one of said points as in the case cited.