Labor Policy Association, 1015 15th Street, NW, Suite 1200, Washington, DC 20005
November 17, 1997
Mr. Jonathan G. Katz
Secretary
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
RE: Proposed Rule on Shareholder Proposals
Comments of the Labor Policy Association
Release 34-93093 File No. S7-25-97
Dear Mr. Katz:
The U.S. Securities and Exchange Commission ("the SEC" or "the Commission") has solicited comments and suggested modifications from the public concerning its proposed rule rewriting SEC rule 14a-8, codified at 17 C.F.R. ' 240.14a-8 (1997). The proposed rule would reverse the SEC’s Cracker Barrel policy, revise the interpretation of the personal grievance exclusion, expand the relevance exclusion, impose a new override mechanism and adjust the resubmission thresholds upward.
This memorandum sets forth the comments of the Labor Policy Association ("LPA") regarding the proposed revision. LPA is an organization of senior human resources executives from more than 250 of the nation’s largest private sector employers, most of which are publicly-held companies. Collectively, LPA members employ over 12 million people in the private sector workforce. Over 20 percent of eligible employees in these companies are represented by labor organizations. The Association is dedicated to promoting employment laws and policies that are responsive to the needs of the modern workplace. Although LPA does not usually submit comments in securities regulation matters, the proposed rule contains great potential for abuse of the resolution process by unions employing pressure tactics to achieve collective bargaining and union organizing objectives. LPA members believe it essential that the Commission hear its perspective.
Summary of LPA’s Position
Union activities conducted by international labor organizations are typically thought of in terms of persuading employees to vote in favor of third party representation in secret ballot elections conducted by the National Labor Relations Board, engaging in collective bargaining with management once representation has been approved, and conducting strikes and other forms of concerted activity when bargaining demands are not met. In recent years, however, international labor organizations have developed new set of methods to achieve union organizing and collective bargaining goals—the "corporate campaign." The success of a corporate campaign often depends on the deliberate manipulation of governmental regulatory and enforcement agencies to exert pressure on target employers.
LPA believes that the SEC’s proposed rewrite of rule 14a-8 would allow unions and their affiliated groups to increase the number of shareholder resolutions they offer for the purpose of pressuring management to accede to union organizing and collective bargaining demands and to create negative publicity in union "corporate campaigns." LPA’s comments are intended to provide the Commission with information on corporate campaign techniques, especially those involving shareholder resolutions. Such purposes stray far from the intended use of shareholder resolutions and should be excludable under the rule.
Reversing the Cracker Barrel rule would require that the Commission again attempt to distinguish between employment-related shareholder resolutions that fall exclusively within management’s domain and broader social issues that deserve shareholder attention. The return to a case-by-case determination would likely leave both management and shareholders uncertain of what is and what is not permissible under the rule and would provide ample ammunition for unions in corporate campaigns. Likewise, the proposed override mechanism causes concern because it provides unions with another mechanism to include shareholder resolutions, especially under the ordinary business exclusion. Finally, LPA supports the Commission’s recommendation to increase resubmission thresholds and suggests that they be increased to 10 percent after the first time, 20 percent after the second time, and 35 percent after the third time.
A. The Proposed Rule Would Allow Unions to Expand Use of Shareholder Resolutions in Corporate Campaigns
LPA has significant concerns about several parts of the Commission’s proposed rule because the changes would provide unions greater opportunity in corporate campaigns to abuse the proposal process to the detriment of shareholders. Developed as a way to combat shrinking private sector union membership, corporate campaigns are a relatively new tactic unions use to pressure employers and employees to accede to their demands. 1 The District of Columbia Circuit Court of Appeals recently defined a corporate campaign as:
a wide and indefinite range of legal and potentially illegal tactics used by unions to exert pressure on an employer. These tactics may include, but are not limited to, litigation, political appeals, requests that regulatory agencies investigate and pursue employer violations of state or federal law, and negative publicity campaigns aimed at reducing the employer’s goodwill with employees, investors or the general public. 2
A corporate campaign manual from the Industrial Union Department of the AFL-CIO describes corporate campaigns in terms of pressure:
(A corporate campaign) means seeking vulnerabilities in all of the company’s political and economic relationships—with other unions, shareholders, customers, creditors, and government agencies—to achieve union goals. 3
Yet another manual quotes corporate campaign strategist Ray Rogers as saying: a campaign strategy "has a beginning point A and an end point Z. Point Z is total defeat or annihilation of your adversary." 4 To be successful, Rogers emphasizes that "there has to be an escalation of the fight." 5 Several aspects of the proposed shareholder resolution rule will promote escalation, particularly the reversal of the Cracker Barrel policy and the shareholder override mechanism.
Unions typically employ corporate campaign techniques to (1) force an employer to recognize the union as the employees’ collective bargaining agent without giving employees an opportunity to vote on the matter in a NLRB secret-ballot election, (2) accede to union bargaining demands in unionized companies, or (3) drive a non-union company out of an area dominated by unionized companies. Although some corporate campaign techniques may directly concern the union’s ultimate objective, proposing shareholder resolutions is one of several tactics unions use as a means of persuading the general public, corporate shareholders, and even the union’s own members that management has failed to act properly in certain situations.
The AFL-CIO has increasingly endorsed the use of corporate campaigns as an organizing tool. In early 1997, AFL-CIO President John Sweeney listed seven employers that the Federation would target with national corporate campaigns. 6 This is a small fraction of all campaigns organized by affiliated unions against companies.
1. Why Unions Offer Shareholder Resolutions in Corporate Campaigns
Union corporate campaigns focus heavily on the use of federal, state and local regulatory agencies to pressure employers and create publicity. As A Troublemaker’s Handbook, a leading corporate campaign manual, describes:
Both public institutions and private companies are subject to all sorts of laws and regulations, from the Securities and Exchange Commission to the Occupational Safety and Health Act . . . . Every law or regulation is a potential net in which management can be snared and entangled. 7
Unions are often large commercial clients in their own right and union trustees of pensions can, within the limits of their obligations to beneficiaries, exert considerable influence over how pension funds are invested. 8
Offering a shareholder proposal is a winning proposition for unions regardless of whether the resolution is accepted, rejected or excluded. By offering shareholder resolutions, "the sponsor creates a possibility for pressure on management and education of the public," 9 creating adverse publicity for the company, not to mention the extra expense of printing a shareholder resolution in the proxy statement. Accepted and approved shareholder resolutions give the union bragging rights, particularly at larger companies. More often, union shareholder proposals are handily rejected, but are still a benefit to unions because "votes of support of over 5 percent can be considered a victory of sorts." 10 Unions use the vote results, no matter how meager, to demonstrate to their members, the public, and the company external support for the union’s campaign:
With careful planning and preparation, the annual stockholder meeting can be transformed from what is normally a showcase for corporate self-glorification into a forum for important union and social issues. 11
Even if a resolution is excluded, the union can energize its members by accusing the company of thwarting its stockholders’ wishes. The proposed override provision could become the conduit for much union mischief in this regard.
Examples of union-proposed shareholder resolutions in corporate campaigns abound. In 1995, the Industrial Unions Department (IUD) of the AFL-CIO assisted the Carpenters Union pension fund in sponsoring a resolution which was to be presented at the First Chicago Bank annual meeting. The resolution related to a prolonged strike against Bayou Steel by the Steelworkers Union. The president of the Louisiana Steelworkers union local spoke on behalf of the Carpenter’s shareholder resolution at the annual meeting, condemning Bayou for alleged unfair labor practices. First Chicago was Bayou’s largest shareholder at the time, and the union was clearly using the close relations between the two companies to create pressure on Bayou Steel. 12 The IUD publicized its efforts to members in its bimonthly magazine under the headline "IUD/USWA Campaign Against Bayou Steel Scoring Hits on Several Fronts."
Pacific Enterprises, a natural gas distributor in Southern California, experienced a corporate campaign by the Utility Workers Union of America (UWUA). As part of the union’s propaganda surrounding the campaign, the union business manager had his photo taken with the Pacific Enterprises Corporate Secretary as he personally delivered the union’s resolutions to the company’s headquarters. The photo appeared with a related story in a union magazine to encourage member support for union actions:
This past week, the Union and several individual shareholders turned in shareholder resolutions for the May 2, 1996 Pacific Enterprises shareholders meeting. Business Manager Beatty Henson will be heading the Union’s efforts to pass these resolutions including soliciting support from major institutional investors and pension funds.
The National Union will be providing staff and monetary assistance for this campaign. 13
Beverly Enterprises, the nation’s largest private provider of nursing home care, has also been a target for union shareholder resolutions. In 1983, the AFL-CIO offered a comprehensive resolution impugning the company’s quality of care and requesting that management convene an independent committee of national experts to investigate the company’s health care procedures and make a detailed report to shareholders. The proposal failed, but the union successfully pressured Chase Manhattan Bank to vote nearly half a million shares in favor of it. 14 Other resolutions submitted by unions to companies include a request for strike impact accounting at Louisiana Pacific, 15 recognition of a union as bargaining representative at Campbell Soup, 16 and an accounting of funds spent in defending against unfair labor practice charges at Litton Industries. 17
The Commission has occasionally recognized a union-sponsored shareholder resolution as part of a corporate campaign and has excluded it under rule 14a-8. For example, the Commission staff issued no action letters in Core Industries and Dow Jones, Inc., two cases instructive in union corporate campaign tactics involving organizing and contract negotiations. In Core Industries, the staff issued a no-action letter when the company excluded a shareholder proposal under section 14a-8(c)(4) that requested equal employment data and policies for each division because the proponent was an AFL-CIO organizer attempting to organize a company division. 18 The staff’s response noted that even though the resolution was drafted to be generally applicable to all shareholders "the proponent is using the proposal as one of many tactics designed to assist the proponent in his objective as a union organizer to obtain union representation" at the company. 19 The staff found persuasive articles and union campaign propaganda the company submitted supporting the special interest exclusion.
In Dow Jones and Company, two employees who were members of the International Association of Publisher’s Employees and the union bargaining committee submitted a resolution regarding executive pay. The Commission staff concurred in the company’s exclusion under 14a-8(c)(4) saying that the resolutions were related to the ongoing collective bargaining negotiations between the company and the union. 20 In its submission to the SEC, the company cited the long negotiation period, union documents and several press articles referencing the shareholder proposals as tools used to force a settlement at the bargaining table. 21 One union bargaining bulletin even described the resolutions as designed to "‘turn up the heat’ on Dow Jones" in pending bargaining sessions. 22
Unions may also offer shareholder resolutions to force management into negotiations on the proposal. A compromise can be as useful to a union as forcing a shareholder vote. For example, in response to a proposed resolution by the International Chemical Workers Union and various churches, American Cyanamid formed a committee to review health and safety issues at the company, and AT&T published a report on its plant closing policy and practices in response to a church-sponsored shareholder resolution promoted by its unions. 23
In short, LPA believes the Commission must take into account the purpose for which union-sponsored shareholder resolutions are often used, whether or not it adopts its proposed rule. Through corporate campaigns, unions attempt to expand an ordinary labor dispute or a governmental attempt to organize a workplace into a referendum on social policy by involving community groups, churches, and regulatory bodies. What may appear to be an employment and policy-based union resolution in reality may be a union attempt to win through publicity and governmental pressure what it could not achieve at the bargaining table. It would indeed be unfortunate for the Commission to become an unwitting supporter of these unscrupulous pressure tactics.
2. Unions Poised to Expand Shareholder Action
The AFL-CIO, under the leadership of President John Sweeney, has taken a much more proactive stance in organizing workers through the use of non-traditional pressure tactics. A key part of the AFL-CIO’s strategy has been the use of shareholder resolutions in corporate campaigns as outlined in Mr. Sweeney’s book, America Needs a Raise:
The challenge is to find ways for working people to support each other in their struggles and to plan sophisticated strategies to use media coverage, political clout, community organizing, international support, and even pressure from investors and major customers to persuade employers to come to terms. That’s why the AFL-CIO is creating an Office of Strategic Approaches; it will help working people find ways to fight and win." 24
Three weeks before the SEC published its proposed rewrite of rule 14a-8, the AFL-CIO announced its formulated strategy to create a network of union trustees "with the ability to articulate an investment program including shareholder activism, targeted investment, active ownership, and corporate governance." 25 Together, public and private union pension funds hold roughly $1.4 trillion in assets or 14 percent of all outstanding shares. 26 Even minimal coordination among larger pension funds could result in a flood of shareholder employment- or governance-related proposals that promote union goals. In the 1997 proxy season, unions submitted over 70 resolutions, only surpassed by the Interfaith Center on Corporate Responsibility and the Investors Rights Association of America, 27 two social investing organizations that often submit resolutions on the unions’ behalf.
The AFL-CIO is uniquely poised to coordinate shareholder actions. Last year, it created the Office of Investment to devise governance and shareholder strategies. As part of its new trustee initiative, it will create the Center for Working Capital, which will issue guidelines for trustee voting on shareholder resolutions. Expanding shareholder rights at a time when unions are seeking to expand their influence over corporations will further complicate the shareholder process by forcing companies to spend time and money reviewing and including in their proxy statements several proposals offered for frivolous purposes. Independent observers confirm that union shareholder activism is a continuing and expanding union tactic. 28
B. The Commission’s Proposed Changes to Rule 14a-8 Would Give Unions Greater Opportunity to Abuse SEC Shareholder Proposal Rules for Corporate Campaign Purposes
The SEC’s proposed narrowing of current section 14a-8(c)(7) will create a new avenue for union attack in corporate campaigns. The Commission has proposed overruling the Cracker Barrel determination, 29 returning to the pre-1992 policy in which employment-related shareholder resolutions that also involve "significant social policy issues" are reviewed on a case-by-case basis. This change will require the SEC staff to review all employment-related shareholder resolutions and create the potential for dramatically increasing the use of employment-related shareholder proposals by unions in corporate campaigns.
Taken alone, the reversal of the Cracker Barrel policy will force the SEC staff to return to the difficult line-drawing that led to its pronouncement in the first place. Such line drawing requires that SEC staff attempt to understand the merits of a proposal in order to determine whether it involves a broader purpose. The Commission staff’s review of shareholder resolutions, by its own admission, is by necessity "quick and informal," however. 30 The staff reviews approximately 400 requests for no action letters annually, leaving little time to review individual resolutions. As the Commission noted in its explanation of the proposed rule: "Despite return to a case-by-case, analytical approach, some types of proposals raising social policy issues may continue to raise difficult interpretive questions." 31
In 1992, those difficult interpretive questions led the staff to exclude employment-related resolutions altogether because "the line between includable and excludable employment-related proposals ha(d) become increasingly difficult to draw" and had "effectively nullifi(ed) the application of the ordinary business exclusion to employment-related proposals." 32 There is no reason to believe that the lines will be any easier for Commission staff to draw in 1997. In fact, given the AFL-CIO’s major initiative to encourage member unions and their pension funds to become involved in shareholder actions, it is likely that the number and type of employment-related resolutions submitted for SEC review will increase dramatically.
Prior to the announcement of the Cracker Barrel policy, there were many cases of requests for no action letters that involved union organizing or contract demands. For example, in Ruddick Corporation 33 the United Food and Commercial Workers (UFCW) sponsored a shareholder resolution as part of a corporate campaign condemning parent company Ruddick for allowing unfair labor practices to occur in a subsidiary. The SEC staff recommended that the company include the resolution in its proxy statement because it involved a policy-based issue. 34
There are several instances where similar resolutions will be filed if Cracker Barrel is overturned. Unions often file inordinate amounts of unfair labor practice charges to force the employer to accede to union demands. In a six-year, ongoing corporate campaign against Caterpillar, Inc., the United Auto Workers union (UAW) has filed nearly 1,000 charges with the Regional Office of the National Labor Relations Board, threatened managers and vandalized Caterpillar plants and personal property. The UAW Secretary-Treasurer even held his own teleconference with stock analysts in hope of depressing the company’s stock price. If Cracker Barrel were reversed, unions and their surrogates can be expected to file resolutions calling attention to a company’s alleged poor labor relations record, harassing management and creating adverse publicity.
Equal employment issues, which are frequently used in corporate campaigns, may also become a common topic for union shareholder resolutions and would no longer be excludable under the "ordinary business" exception. 35 In Dayton Hudson Corporation, 36 a proposed resolution from the Amalgamated Clothing and Textile Workers (ACTWU) requesting detailed equal employment data from the corporation was determined to be an important policy issue by the SEC staff. The staff refused to issue a no-action letter, and the company was required to include the proposal in its 1991 proxy statement. ACTWU routinely submitted such resolutions to clothing retailers. The union even went to federal court to challenge the SEC’s issuance of a no-action letter concerning a similar resolution in Amalgamated Clothing & Textile Workers v. Wal-Mart, 37 a case in which the court refused to defer to SEC’s Cracker Barrel determination and issued an injunction against the Commission. Such resolutions give unions ammunition when challenging a company’s equal employment practices as part of corporate campaigns. Combined with the growing practice of union-sponsored equal employment class action litigation, equal employment resolutions can provide ample grist for the corporate campaign mill. 38
Union-sponsored or surrogate group sponsored shareholder resolutions present the Commission with a special problem. On their face, these resolutions may appear to be regular shareholder requests for information and/or may relate to general policy issues. Underneath, however, if such reports are prepared and disseminated, they interfere with management’s ordinary business operations by requiring it to disclose information that unions and their allies can use in organizing and publicity campaigns against the company. By disclosing such information, the corporation is not only required to defend against regulatory charges filed against it by the union, but also against union publicity fueled by management’s own information. As Angelica Healthcare, Inc., noted in a no-action submission approved by the SEC staff, policy-related arguments that pertain to labor-management disputes ignore "whether stockholders, as a group, are competent to balance the production, financial, legal and other diverse factors necessary to determine the appropriate way to handle employee and union matters." 39 The Commission staff in that case believed that shareholders were not competent to handle such complicated matters.
C. The Override Mechanism Provides Unions Another Avenue for Submitting Corporate-Campaign Related Proposals
LPA is alarmed by the potential effect of the Commission’s proposed override mechanism. Although certainly applicable to more investors than just unions, the override proposal would allow any single shareholder or group of shareholders to include a resolution normally excluded under proposed sections 14a-8(i)(5) or (i)(7), provided they could show the support of three percent of outstanding shares. The Association believes that the override mechanism would create more opportunities for abuse by certain groups, especially unions.
The purpose of the override provision is to "provide shareholders an opportunity to decide for themselves which proposals are sufficiently important and relevant to all shareholders—and, therefore, to the company—to merit space in the company’s proxy materials." 40 It is unclear that shareholder proposals are inordinately excluded under the relevance or ordinary business sections. The Commission notes in its explanation of the proposed rule that only two resolutions have been excluded under the relevance exclusion in the 1996-97 proxy season. 41 Admittedly, it can be expected that more than two resolutions will be excluded per season under the relevance section if the proposed change is adopted, but it is questionable that the change will shut out sufficient numbers to warrant an override mechanism. If the Commission is concerned about the scope of its change in this area, perhaps it should liberalize the bases for exclusion as proposed, monitor the results, and then make adjustments in a future release.
Under the ordinary business operations section, LPA believes that there is no need to create a special exemption for shareholder proposals. The purpose of the ordinary business exclusion is to allow management to run the business without interference from shareholders in areas that are too complex or that involve highly specialized knowledge. The override provision appears to contravene the intent of the Commission in enacting the ordinary business exclusion and would likely limit the flexibility of the staff in interpreting it. The Cracker Barrel decision is a good example of SEC staff interpreting the ordinary business exclusion in connection with the circumstances of the time. If the Commission decides to reverse Cracker Barrel, an action of concern to LPA, there is even less need for an override provision because more shareholder proposals will be included in proxy materials as a result.
The override provision would also create significant opportunity for union corporate campaign abuse in light of the AFL-CIO Trusteeship initiative. For the first time, AFL-CIO President John Sweeney has created a Center for Working Capital to "coordinate the holdings of all unions and union members and turn billions of pension assets into a new weapon for labor." 42 Union pension funds already control $1.4 trillion in corporate stock, or roughly 14 percent of all outstanding shares. Considering that the Commission’s records indicate that often one institutional investor could easily supply the three percent threshold, 43 it can be expected that labor would easily muster three percent support in key campaigns, as the proposed rule requires. In addition, the proposed rule’s limit of one sponsored override proposal per shareholder per company provides little solace. Unions could coordinate holdings and mount override drives at several companies.
As indicated above, individual unions engaged in corporate campaigns have used their pension fund holdings to impose pressure on closely connected creditors such as banks and insurance companies in order to squeeze them into voting with the union on their resolutions. Similar pressure could be applied, if needed, to gather support for an override campaign.
D. The Commission Should Increase the Proposed Resubmission Thresholds
The Commission has proposed to increase the resubmission thresholds under its proposed rule. LPA applauds this change, but considering the advantages provided to shareholders in the proposed rule, the Association believes the thresholds should be increased further to ensure that resolutions are not sponsored for harassment or publicity reasons, as often occurs during union corporate campaigns. LPA recommends that the thresholds be increased from the Commission’s suggested levels of 6 percent the first year, 15 percent the second year, and 30 percent the third year to 10 percent, 20 percent and 35 percent, respectively. An initial threshold of 10 percent requires a resolution sponsor to demonstrate shareholder interest. Likewise, if a proponent cannot double the percentage of support the second time it is proposed, there would appear to be no reason to include the proposal in the third year.
Conclusion
LPA believes that while shareholder participation in corporate governance is a hallmark of publicly held companies, it is concerned with the Commission’s proposed rule because it has the strong potential of leading to widespread abuse by unions in corporate campaigns. If the Commission adopts the rule as proposed, unions, under the AFL-CIO trusteeship initiative, will be further encouraged to exploit the opportunity it provides for manipulating governmental processes to apply pressure to achieve union organizing and collective bargaining objectives.
In particular, the Commission should carefully review its decision to overturn the Cracker Barrel determination and at the same time provide an override mechanism. Both would provide additional avenues for unions to attack the corporate governance process to gain an improper advantage over management in labor disputes. LPA applauds the Commission’s recommended increase in the resubmission thresholds but encourages it to increase them further.
Sincerely,
Jeffrey C. McGuiness
President
JCM/lg