Earl Warren

“ We find no such evidence in this record. Rather we are faced with evidence that the statutory violation occurred not just from Kenneth Nelson's act of acquiring Gilbertville, but from the acquisition plus subsequent practices integrating the management and operations of Nelson and Gilbertville, practices that could conceivable be discontinued without divestiture. In addition the trial examiner found that the violation was not willful and that the parties' experience in this proceeding would make them more responsive to regulation in the future. ”

“ This section states that for purposes of § 5 and other sections, 'control' 'shall be construed to include actual as well as legal control, whether maintained or exercised through or by reason of the method of or circumstances surrounding organization or operation * * *.' We have construed this language to encompass every type of control in fact and have left to the agency charged with enforcement the determination from the facts whether 'control' exists, subject to normal standards of review. ”

“ Other records indicate that Nelson drivers are often hired by Gilbertville during the same week and sometimes on the same day. The triplease arrangement is also supported by the fact that the majority of Nelson-Gilbertville interlining is at Monson, Connecticut, where Gilbertville Co. keeps only an open lot and, when possible, an empty, unguarded trailer for the receipt of less-than-truckload shipments. ”

“ It is also certificated as a contract carrier of canned goods in Masachusetts, Connecticut, and Rhode Island. Nelson is certificated as a common carrier for textile commodities over irregular routes between points in Massachusetts, New Hampshire, Rhode Island, Connecticut, and areas adjacent to New York and Philadelphia. It is also certificated for general commodities in intrastate traffic in Connecticut and Massachusetts. Thus, the Gilbertville and Byrnes general-commodity routes complement each other perfectly and overlap to a considerable degree the textile routes of Nelson. ”

“ Control and Merger-The Cumberland Motor Express Corp., 75 M.C.C. 423, 428; cf. Interstate Commerce Act, § 207, 49 Stat. 551, 49 U.S.C. § 307, 49 U.S.C.A. § 307. Integral to a determination of fitness is the applicant's willingness and ability to fulfill its obligations to the Commission, considerations which may be demonstrated in part by past or continuing violations of Commission regulations. E.g., Powell-Purchase-Rampy, 57 M.C.C. 597. This has not been contested by the appellants, and its relevance to a finding of consistency with the public interest is selfevident. ”

“ There the shipment-trailer is taken by the transferee, but no trailer is given in exchange; instead the transferor will lease the shipment-trailer to the transferee for the completion of the trip.↑ Commission employee Edward D. Sheatestified that Gilbertville's terminal manager, John Kashady, had informed him that both these practices were regularly employed. Gilbertville records also indicate that Gilbertville lists the names of all Nelson drivers and keeps their doctor's certificates on file. ”