Don't tell Elizabeth Murphy that the Interstate Commerce Commission has relaxed its regulations to permit new companies to enter the trucking business.
She won't believe it.
Since she started White Tiger Transportation Co. in 1976, Murphy has been locked in a struggle with the ICC bureaucracy over her repeated efforts to win authority to offer trucking services over new routes. She is particularly angry and embittered about ICC Chairman A. Daniel O'Neal's claims that the ICC is granting 98 percent of all route applications.
"If they're granting 98 percent, where the hell am I?" she asks. "I'm the 2 percent."
White Tiger has been operating as a regulated trucking company authorized by the ICC to haul the goods of specific shippers under emergency temporary authority and temporary authority grants. But Murphy's attempts to expand her services and her shipper-client list have met with limited success.
Many of her applications were turned down by the ICC, if they were acted on within the prescribed time limit at all. Each application -- which must be accompanied by a filing fee -- is good for only 30 days. If the agency fails to act within that time, another application requesting an extension -- and another filing fee -- is required to keep it current. This can go on indefinitely. Also Murphy sometimes found that the rejection of an application could be reversed after she filed a motion -- requiring still more legal fees -- to have it reconsidered.
In 1977, as Murphy tells it, she was "so disgused with the ICC and their bureaucratic ways" that she decided to file an application asking for authority to carry general commodities over the 48 states. "If they're going to deny me the bits and pieces, why not go for the whole thing?" she asked.
That's when her troubles really started. It turns out that general-authority applications just aren't filed. Everyone who deals with the ICC on a regular basis knows that. But Murphy hand't dealt with the ICC that long and hadn't been clued in. Before she started White Tiger, she had been operating as a broker of trucking services -- matching loads with drivers -- not knowing, she says, that she needed the government's blessing first. She was going merrily along, expanding her business, when an ICC district representative came to call and told her she needed the government's permission to do what she was doing.
"I didn't have a lawyer; I didn't know about the ICC; I didn't even know it existed," she says, explaining her corporate beginnings.
But she knows now, and if she was aggravated by the ICC's treatment of her "bits and pieces" applications then, she didn't appreciate how comparatively peaceful life really was.
When a company applies for new authority at the ICC, it has to show both that it is "fit, willing and able" to perform the proposed trucking services and that there is a public need for them. In the process, existing companies can protest that shippers' needs can be met adequately by existing services and no new authority should be issued.
Although Murphy's earlier and limited applications met with some opposition from trucking firms, many more companies were interested in her application for nationwide authority. When it was filed, 138 carriers protested, 68 of whom have remained opposing parties throughout the whole case. When the application was heard by an administrative law judge in the summer of 1978, Murphy was on the stand for seven days and was cross-examined by no fewer than two dozen attorneys.
Although the case hasn't been resolved, and some of the issues of controversy seem hopelessly mired, White Tiger's case illustrates the difficulty one company has had in trying to get the government's approval to operate a business -- it is a time-consuming and expensive process. The case also illustrates the unwieldy bureaucracy of the ICC and why trucking firms spend enormous amounts of time and money on ICC proceedings that otherwise might be spent on competing with each other in services and rates.
The charges against Murphy vary:
White Tiger may have been connected illegally to another regulated trucking company.
Murphy wasn't really in control of the firm; the operator of the other company was the "true party of interest," not her.
She failed to differentiate between "owned" and "leased" trucks on her application.
She carried some goods outside her territorial limits.
A notary's signature on one application was forged.
The company didn't use the proper equipment-leasing forms.
She failed to fill out the applications fully, leading to charges of misrepresentation.
Murphy disputes some of the allegations altogether, has explanations for some and freely admits to others. "I was a novice in the industry," she explains. "I didn't know all the ICC's rules and regulations . . . "
None of the charges allege that White Tiger hasn't served its shippers well; none of the charges allege that Murphy lost, destroyed or stole any goods.
It doesn't matter -- ICC Administrative Law Judge Steven M. Charno forwarded his initial decision to the commission this summer, finding her "unfit, unwilling and unable" to comply with the Interstate Commerce Act and the agency's regulations, and denying her application. Not yet acted on by the full commission, the verdict is one that Murphy obviously disagrees with. "I am fit, willing and able, and prove it every day," she counters. Among her shippers are Anheuser-Busch Inc., Toys "R" Us, the Revco Discount drug chain and Sharp Electronics.
The bottom-line questions Murphy raises about the ICC are essentially the questions being raised by proponents of trucking deregulation: "Why can't I operate a trucking business if I have the equipment and serve a shipper's need?" she asks. "Why do I need the ICC?"
Her application, her attitude, her special brand of Metropolitan New York chutzpah have made Murphy something of an "enfant terrible" at the legalities-concerned ICC; she is clearly a thorn in the side which the bureaucrats wish they could remove. But it is also clear that she is in for the long term.
A visit here to the trucking company headquarters -- using the term loosely to describe the converted trailers that serve as offices -- makes it clear that White Tiger is no ordinary trucking company. For starters, the trucks sparkle; no dirt, grease, spots, dents on them. Murphy insists on cleanliness -- she believes it instills pride in the drivers and enhances their care of their freight -- and pays a monthly bonus of $100 to the driver with the cleanest truck.
Not only are the trucks gleaming, but they definitely are more interesting artistically than their brethren on the nation's highways. Some trucks acquired earlier have prictures of plain old tiger faces on them, but all the newer trucks have differing colorful caricatures of Elizabeth Murphy in tight, low-slung hip-hugger pants and bikini top in various poses with white tigers -- holding them back, leading them down a highway and so on. To say they are eye-catching is an understatement. And next month, Murphy will get delivery of some new trucks she designed with the cabs painted in black and white tiger stripes.
Murphy, whose father was a trucker for 40 years, picked the name White Tiger for her company after she read that there were fewer than 50 white tigers remaining in the world -- a rare breed, rare like her trucking company would be, she says. It appears to be rare, and so does she. How many other trucking company presidents have gardens of tomatoes and eggplants behind the office? (The vegetables turn out to be naturally salty because of the marshland they are planted in, you are informed.)
A strong tone of fighting underdog permeates conversation here in the shadows of the Pulaski Skyway in this trucking haven. Murphy, a 35-year-old divorced mother of three children, is convinced that part of her problem stems from old-fashioned discrimination against women. She points out that no certificates were given to women when the ICC issued thousands in 1935 under a grandfather clause in the law bringing trucking under federal regulation, nor have any certificates been issued to women since then except to those who have inherited companies from fathers or husbands.
"I am entitled to the grandfather rights that the ICC didn't give my grandmother," she wrote President Carter in one of her many letters to public officials trying to create some interest in her plight. (Considering her lack of success with bureaucracies, it is perhaps fitting that the letter she received in reply from a White House staffer obviously was routed to her by mistake; although addressed to Murphy, it responds to someone who wrote the president about the Housing and Urban Development budget.)
Harry Schildhaus, White Tiger's executive vice president, agrees with Murphy's charge of discrimination. "They just refuse to believe a woman can run a business," he says.
It is Murphy's ties to Schildhaus that have led to many of the charges against her. Murphy, whose education extended only to the 11th grade, started her trucking career in 1972 as a sales representative for a trucking company Schildhaus owned, although she soon moved on. She says that when she decided to start her own company, she asked Schildhaus, a veteran of 20 years in the trucking business, for advice and help. They both say he signed on as a consultant for $250 a week, served as an incorporator and director, and got the title of executive vice president. "In a firm as small as mine, it is easier to give an official-sounding title than a pay raise," she told the ICC. He signed on full time last January after the sale of his regulated trucking company was consummated (he had asked ICC approval for the sale in 1977).
Schildhaus' work to help get White Tiger off the ground has led to charges at the ICC that he, not Murphy, really controls the company. "They can't believe that it's possible that I now work for a woman who once worked for me," he says. "They can't understand my relationship with White Tiger. I'm just having fun."
Among evidence used to support the allegation that Schildhaus is in control was his acquisition of insurance for the fledgling White Tiger and his sharing office space with Murphy. Both say that, as a new company, White Tiger was unable to get insurance so he added her company to his policy. She paid the premiums as well as her share of the rent for office space, they say. Another allegation is that Murphy misrepresented the facts when she answered "not applicable" to a question about whether anyone at White Tiger was affiliated with another regulated trucking company. (When White Tiger was created, Schildhaus says his company had only one truck and was offering services not subject to ICC regulation.)
Another allegation concerns her failure to "dedicate equipment" to her contract shippers; mixing two shippers' goods in the same truck is illegal. Another is that White Tiger had 200 illegal shipments. Murphy admits that some of them were unknowingly illegal; some were moved after she was granted authority but didn't have the "certificate" yet; some moved outside a zone exempt from federal regulation when one of her shippers moved its headquarters a couple of miles, she says.
Unfortunately for White Tiger, the controversy surrounding her general application has had a negative impact she hadn't expected on the applications she continued to file to carry specified goods for specified shippers. Because of allegations raised about her "fitness" to be a regulated trucking company during the proceeding on the broad application, the ICC "flagged" all her other applications. Under its flagging procedures, the ICC holds up all grants of authority in all pending and future proceedings pending resolution of fitness questions raised in another. This is true even if the company is found "fit, willing and able" in the other proceedings. In fact, in a case decided in January, one ICC administrative law judge found her fit, willing and able and found that there was a need for her services. The grant of authority was to have become final in 20 days. In withholding the certificate, the ICC later said the judge had committed a "ministerial error."
A full month before the ICC ordered White Tiger's applications "flagged," the commission's fitness flagging procedures were found defective by the U.S. Court of Appeals here on grounds that they violated an applicant's administrative and due process rights.
Although the hearing record and subsequent legal filings contain many of Murphy's and Schildhaus' explanations, ALJ Charno rejected them. He noted that there was a considerable amount of conflicting evidence, but in his initial opinion repeatedly dismissed Murphy's statements as a witness and expressed doubts about her credibility "because of her demeanor while testifying." Although she contends she has been in complete compliance with all ICC rules since July 1978, and Charno acknowledges that she fully cooperated with the ICC, he dismissed her promises of good behavior.
In seeking to answer the charges and allegations, Murphy and Schildhaus bring up something that does not come up at all in the record of the case but is being whispered in the ICC halls: Maybe she is fronting for the Mafia."They're saying anything to avoid the possibility that she can run her own business," says Schildhaus. "If she was Al Capone's daughter, she could buy out someone else's rights," he says, pointing out that the ICC is always approving mergers and acquisitions. Says another observer of the case: 'The underworld does things quietly; they wouldn't create this kind of stir."
Even with its ICC troubles -- which have cost $100,000 in legal fees -- White Tiger has been doing well: It had gross revenues of $1.2 million during the first half of this year. "This happens to be the epitome of the American dream," Schildhaus says. "If not for the ICC holding her back, she'd be the female Horatio Alger."
It isn't clear what will happen when Murphy's application finally comes to the full commission for action. One of the members who voted to flag all her applications last year is gone, another didn't vote and now there are three new commission members nominated by President Carter specifically because it was believed they favor more competition in the trucking industry.
Commission watchers say that the ICC could overturn Charno's decision and give Murphy a new certificate for the nationwide authority she seeks, with a limited term that could be renewed if her operations continue in compliance with ICC rules. In a case decided last year, the ICC gave a three-year certificate to a company despite many violations of the ICC Act on grounds that the firm showed a willingness to correct past mistakes and make an effort to comply with ICC rules in the future. The ICC specifically said its authority-granting process should not be punitive.
Meanwhile, however, White Tiger has been suffering a loss of potential business -- estimated at about $1 million -- while its applications languish, and Murphy says some of her regular shippers have become nervous since the law judge's initial decision came out. "Frankly, I don't like the publicity," Ray J. Hellwig, assistant general traffic manager of Anheuser-Busch, admitted. Although he said the company wouldn't abandon Murphy's services, she said Hellwig wrote a letter requesting new verification of her insurance, copies of her certificates, etc.
Others are leery as well, she says. Not only had Charno found her "unfit, unwilling and unable," but he also recommended that the commission proceed with an investigation to determine whether her existing authority should be revoked, and also wanted the record sent to the criminal division of the Justice Department "in order to allow criminal investigation."
"My only crime is asking the ICC for too much," Murphy replies.