310

DOUGLAS, J., dissenting.

also descriptive of this group of employees was Walling v. McCrady Construction Co., 156 F. 2d 932 (C. A. 3d Cir.), which brought within the Act's coverage workers building roads and bridges to be used to transport goods in process of production for interstate commerce. These facilities, like the one in the present case, were not owned by the producers, nor were some of them yet in existence. But when completed they would serve as facilities for those who were producing goods for commerce. That case clearly suggests that the Congress in redefining the scope of § 3 (j) was following the broad contours of the coverage which had been delineated by the construction cases, as well as by the maintenance cases.

It seems as if there could be no doubt that the present case is brought squarely within that category, for this project was not the construction of a wholly new water system but an improvement of an existing water system. Moreover, the water system being improved would seem to be as much a facility of those producing goods for commerce as was the highway in the McCrady case. Moreover, in Alstate Construction Co. v. Durkin, supra, a company, making products sold intrastate but used to improve the facilities of those producing goods for commerce, was held to be employing workers covered by the Act. The work in improving the present facility used by producers of goods for commerce is at least as close to the process of production as the labor of the men in the Alstate case.

So it is that I believe today's decision changes the symmetry of the judicial rulings under the Act, narrows its scope, and impairs its effectiveness. Today's ruling is a departure from the accepted construction. By this retreat I fear we invite hostile constructions that will undermine the broad base which Congress gave the Act. If there is to be a change in the direction of the law or an

DOUGLAS, J., dissenting.

362 U.S.

alteration in its emphasis, it should be done by Congress which is far better suited than we to mark the farthest areas which the liberal policies of the Act were designed to cover. I regret that today we give up territory that Congress has fairly claimed, that we take a backward step from the measures Congress designed to protect the lowest paid and weakest group of wage earners in the Nation.

Per Curiam.

UNION PACIFIC RAILROAD CO. v.
UNITED STATES.

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

No. 98. Argued March 23, 1960.-Decided April 4, 1960.

In order to afford shippers additional time to find a market for lumber while in transit, appellant railroad renders a 14-day delayed lumber service over a route ordinarily requiring from two to four days. In doing so, it incurs additional operational problems and costs not present in its fast freight service and not included in its published tariff. Held: Such delayed service constitutes the furnishing of additional "privileges or facilities," within the meaning of § 6 (7) of the Interstate Commerce Act, and must be published and filed in appellant's tariff. Pp. 327-328.

173 F. Supp. 397, affirmed.

Elmer B. Collins argued the cause for appellant. With him on the brief was James H. Anderson.

John G. Laughlin, Jr. argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub and Morton Hollander.

PER CURIAM.

Appellant, along with other railroads, has for years engaged in the "roller lumber traffic" by performing intentionally delayed service in the transportation of lumber from the West Coast to market. Six roads so engaged have filed tariffs covering such services at the same rate as their fast freight, and the Interstate Commerce Commission now has such tariffs under investigation and consideration. Appellant, however, has refused to file a tariff covering such service but continues to handle roller lumber traffic on the same tariff as its fast freight.

541680 O-60-25

The United States, at the instance of the Interstate Commerce Commission, sought and obtained a permanent injunction restraining appellant from performing its roller lumber traffic service until it publishes and files a tariff covering the same. The District Court found that appellant renders a 14-day delayed lumber service over a route ordinarily requiring from two to four days. The delay is accomplished by the holding of cars on sidings at certain points on its trunk lines awaiting diversion orders to move the shipment forward over the railroad's regular service. This affords the shipper additional time to find a market for the lumber while it is in transit. This service, the District Court found, incurred additional "operational problems and costs" for appellant, including switching, siding, storage and "per diem cost for the use of foreign cars" not present in its fast freight service and not included in its published tariff. We agree with the District Court that such delayed service constitutes the furnishing of additional "privileges or facilities" under § 6 (7) of the Interstate Commerce Act, and, therefore, must be published and filed in its tariff. 49 U. S. C. § 6 (1). See Turner Lumber Co. v. Chicago, M. & St. P. R. Co., 271 U. S. 259, 262 (1926).

If and when appellant publishes and files such a tariff, as other roads have already done, the Commission can then consider the reasonableness and justness of appellant's service in the light of that rate, giving due regard to any unjust or unreasonable preferences or advantages that might result to shippers or other roads should the same not be approved.

Affirmed.

UNITED RUBBER, CORK, LINOLEUM & PLASTIC WORKERS OF AMERICA, AFL-CIO, ET AL. v. · NATIONAL LABOR RELATIONS BOARD.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 316. Decided April 4, 1960.

Certiorari granted and judgment reversed.

Reported below: 269 F. 2d 694.

Garnet L. Patterson and Arthur J. Goldberg for petitioners.

Solicitor General Rankin, Stuart Rothman, Thomas J. McDermott, Dominick L. Manoli and Norton J. Come for respondent.

PER CURIAM.

The petition for writ of certiorari is granted. The judgment of the United States Court of Appeals for the Fourth Circuit is reversed. National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, ante, p. 274.