Riverwater Partners Employment Clauses Engagement

By Cindy Bohlen

Chief Mindfulness Officer & Analyst, Riverwater Partners

Riverwater Partners, a Responsible Investment RIA based in Milwaukee, WI, is working in collaboration with Meredith Benton, Whistle Stop Capital, and Molly Betournay, Clean Yield Asset Management, and a few other investors, on an engagement campaign with companies to end the use of Forced Arbitration and Non-Disclosure Agreements in the context of employee harassment and discrimination claims. Riverwater chose to participate in this campaign because we believe the cost and effort to end the use of these tools is insignificant compared to the risks associated with their use, which include human capital costs, legal risk, and brand exposure.

In June, Riverwater sent letters to CEOs and Investor Relations of 24 portfolio companies highlighting said risks, stating that Attorneys General from all 50 states have signed a letter calling for the end of mandatory arbitration in sexual harassment cases, and citing examples of high-profile companies that have ended their use. As of August, we have received responses from eight companies, most indicating they do not use Forced Arbitration/Non-Disclosure Agreements at all. A few with union employees stated that negotiated contracts require certain disputes to be determined by arbitration; given that these terms are negotiated by experts on behalf of the employees, we believe this is fair. In all cases, we are encouraging companies to disclose these policies publicly, as investors have begun to focus on the issue.

Riverwater is in the process of following up with companies that have not yet responded. Our goal is to educate them regarding the risks of using Forced Arbitration and Non-Disclosure Agreements, and to encourage them to either disclose publicly if they are not using such tools, or to end use. We will consider further action, including shareholder resolution, if we deem it appropriate. We welcome participation by others who are concerned about this practice. Please feel free to contact Cindy Bohlen of Riverwater at cbohlen@riverwaterllc.com with interest.

Note from SGI: Efforts like this to end mandatory arbitration of sexual harassment claims help to put a stop to the culture of silence that protects perpetrators at the cost of their victims. We salute Cindy for her participation in this important work.

My Visit to South Texas Family Residential Center in Dilley

By Mark Peters

Director of Justice, Peace and Reconciliation, Priests of the Sacred Heart

The August 25 Washington Post ran a story about the South Texas Family Residential Center in Dilley, Texas, the largest of three in the U.S. specifically dedicated to the holding of mothers and children.  Opened to reporters for the first time, the center was described by reporter Maria Sachetti as clean and well-equipped, very different from the images we’ve all seen of kids in pens at the border. 

I can confirm her story – I was there two weeks earlier and saw everything she described:

…a dental office, with a reclining chair and sterile instruments… cafeteria serving hot dogs, lime-cilantro chicken, tortillas and green salad — all you can eat… Kindergartners [singing] “If You’re Happy and You Know It…” access to a wide array of services, including a 24-hour infirmary, a day care, a library with Internet and email access, a beauty salon, a charter school and a canteen.

I’d been asked by SGI to take part in a tour of the Dilley facility and sit in on a dialogue of ICCR members with CoreCivic, the private corporation that runs Dilley and is one of the “big two” in that field, along with GEO Group.  At one time they were in dialogue with GEO, but the company had “paused” that conversation. (In fact the CEO had suggested they sell their shares and leave them alone!

CoreCivic has been a more willing partner, and after the dialogue I sat in on later that afternoon after the tour of the detention facility, the ICCR delegation saw signs for hope that human rights were getting needed attention.  But one has to wonder what an organization like Catholic Charities could do with the money CC is getting to run this camp, whether it’s full or not (surprisingly it never has been and often is way under its 2400 bed capacity).  The director told us he had “no idea” how Customs and Border Patrol and ICE decide who to send and not – mothers have reported an almost “eenie-meenie-minee-moe” approach at the border.

The Post reporter’s story is excellent in my opinion, and I encourage you to read it.  I especially call attention to her explanation of the Flores Agreement and the impact the Administration’s plan to nullify it would have on the length of time families are forced to stay in these camps (in a “vast stretch of scrubland in a tiny former oil-boom town, an hour south of San Antonio”), where the temperatures are often above 100 degrees and people generally don’t leave their air-conditioned pods.

The women who’ve left and were interviewed by Sachetti all agreed that, while “far better than the Border Patrol holding cells or the safe houses they stayed in during their trip through Mexico,” they still considered Dilley a jail.  Most currently stay less than the 20 day Flores limit, but if Flores is negated stays are expected to go to 3 times that and could legally be unlimited.  What will it do to the admittedly good morale (for the circumstances and relative to the trauma they’ve just passed through) we witnessed if that becomes the case.  We need to be telling Congress to keep the Flores Agreement!

I and the others were very surprised by what we saw in Dilley and relieved to know that not every detention facility is as bad as the worst of them (I can only vouch for this one, but I would also have to say that we all felt it was not “staged,” that we were seeing normal life there).  The next day, we heard a group that provides pro bono legal services say that residents were not being allowed to see them without an appointment, which should be their right, but we weren’t able to ask the CoreCivic official about that.  Follow-up is planned.  I’m grateful to SGI and ICCR for the opportunity to participate in this visit and commend the dialogue team for their dogged efforts to ensure that human rights are not trampled.  Perhaps what we saw would not have been that way without the efforts of them and so many others to let government and business know we are watching.

On opioids, shareholders spoke, companies begin to listen

Since 2017, SGI has participated in Investors for Opioid Accountability (IOA). This week, the IOA released a two-year progress report detailing landmark agreements with 20 opioid manufacturers, distributors and retail pharmacies implicated in the crisis. 

Between headlines about Democratic debates and Washington feuds, news about lawsuits and proposed settlements have drawn some attention this week. Steadily and purposefully, the IOA has dug down into the crisis and sought ways to address it as shareholders. Specifically, the IOA has engaged opioid manufacturers, distributors, retail pharmacies, and manufacturers of drug treatments.

A few important things to note from the report:

  • A majority (52%) of shareholder proposals led to agreements with the companies;
  • Of the shareholder resolutions filed, seven resolutions at Rite Aid, Walgreens, Mallinckrodt, Mylan, and Assertio Therapeutics received majority votes and an additional two resolutions received majority support at AmerisourceBergen from independent voters, leading to reforms;
  • Twelve companies agreed to conduct risk assessments of opioid-related business practices including governance, compliance, compensation and political lobbying and to report these findings publicly. Two of these companies (Cardinal Health and Assertio) established special board-level committees on opioids;
  • Ten companies agreed to adopt misconduct clawback policies  to recoup executive pay, including the public disclosure of the use of the clawback;
  • Three companies agreed to separate their chair and CEO positions (McKesson, Cardinal Health and AmerisourceBergen), and;
  • Two companies agreed to disclose when they adjusted metrics to exclude legal costs when calculating their executive pay awards. 

Established out of heightened concern that opioid company risks both threaten long-term shareholder value and have profound long-term implications for our economy and society, the IOA uniquely represents influential and diverse funds from across the investing universe including faith-based, sustainability, public, and labor funds as well as comptrollers, treasurers and asset managers that are taking swift and decisive actions to hold manufacturers, distributors, and retail pharmacies’ boards accountable for their role in the opioid crisis. The IOA consists of 54 investors with over $4 trillion in assets under management and is co-led by Mercy Investment Services, Inc. and the UAW Retiree Medical Benefits Trust.

If you wonder what difference shareholders can make, this report spells out in particular detail how attentive and deliberate engagement can achieve results. We are proud of our participation in the IOA. We’d urge our members to examine this report. As you do, keep in heart and mind those who have died in this opioid epidemic, those who struggle with addiction today, families devastated by losses, and communities overwhelmed with the human and material cost of this crisis. If you hold shares in companies outlined in the report, we’d welcome the opportunity to facilitate your support of these engagements. Please, contact our staff for more information.

Additional posts concerning the opioid epidemic and SGI’s efforts are found here:

The long and winding road

by Pat Zerega

Senior Director Shareholder Advocacy, Mercy Investment Services

This weekend, we saw Rocketman, the story of Elton John. It brought back memories of so many songs we grew up with.  For some reason I kept thinking of the song the long and winding road as a parallel to the story (even though it was written by the Beatles, Elton John performed it on occasion). Part of the reason it came to mind is that the song reflects how I feel about the private prison work and GEO specifically. It might be helpful to review some of the history that got us to today.

Around 2003, John Celichowski, O.F.M., Cap. and Valerie Heinonen, O.S.U., began approaching the private prison companies. At that point, their stock was considered ‘penny stock’ with few members at ICCR owning GEO, CCA or Cornell. The first resolution oat GEO received 3.2% and a similar resolution brought CCA to the table without going to vote. Fr. John moved on to leadership in the community and passed the mantle to Fr. Mike Crosby.  A variety of approaches including lobbying and human rights policy development continued with GEO and CoreCivic (formerly Corrections Corporation of America) through 2011. Dialogues were often contentious (my participation was through the Lutherans), and at one point the CEO of GEO wondered why we didn’t just “sell the stock and leave them alone.” We continued to focus concern with the people in custody.

In 2011, a resolution calling for a human rights policy was filed. At the same time, the Jesuit Social Research Center had obtained a grant to work with private prisons around human rights and training, so the Jesuits began to lead both dialogues. This grant brought in prison experts to help lead the way and both companies developed polices and entered into dialogue.  

We all know writing a policy is not the be all and end all of work. We need to see that the policy doesn’t sit on the shelf but is implemented, training occurring and the culture changing. Shareholders expected to be able to find that out through dialogue and increased transparency in reporting on the prison companies’ websites.

Since that time, the dialogues have focused on several issues including medical care and segregation from the general population, but shareholders felt like we were not seeing the real impact hoped for with a human rights policy. Abuse allegations remained high, and news coverage of these events continued. In the spring of 2018, we began to see many reports concerning immigration detention conditions in private prisons. ICCR hosted letters to both private prison companies with more 50 signatures asking for the prisons not to become involved with government detention contracts.

CoreCivic answered the letter and continued to engage in a meaningful way, this spring presented its first ESG report. They are working on other ways to be transparent on human rights issues.

In the late summer of 2018, GEO, however, put a ‘pause’ on dialogue. This was new to me. I’ve had companies stall or not answer letters, but to actually write and say they didn’t want to talk was new ground.

Our group was frustrated and decided to file a resolution in the fall of 2018 asking for a report (that was indicated in GEO’s own policy) concerning how implementation of the human rights policy. Many shareholders joined the group of Jesuits and Mercy Investment Services addressing this issue, and in November the resolution was filed.

As expected, the resolution was challenged, but the SEC denied the no action thus, agreeing it had to be on the ballot. Shareholders filed a proxy memo indicating reasons why it should be left on, alerted proxy advisors of the resolution, and the week before the AGM learned that both proxy advisory firms were supporting the resolution. As that information became public, we also received an unexpected email from GEO, telling us they would no longer oppose the resolution and filed such a statement with the SEC. The company never quite supported the resolution, nor changed the proxy on their site, nor put the SEC statement on their site, nor did they reach out to talk with us. So, we prepared to present at the AGM (a virtual-only AGM, but that too is for another day), and garnered nearly 88% of the vote.

(Photo by Pat Zerega, Door County Wisconsin 2016)

The story of course does not end there. Shareholders have met since then to discuss next steps and have sent a letter requesting to return to the dialogue table with all interested parties and explain what we are looking for in the requested human rights report. Thus far, there is no answer to that request, but we know there is always another twist in the road ahead.

RBI: Deforestation and Empty Chairs

On Monday night, Toronto was electric, not for the Restaurant Brands International (RBI) shareholder meeting, but for game five of the NBA Finals between the Toronto Raptors and the Golden State Warriors. If the Raptors had won, I worried that I might not sleep well given the ensuing revelry associated with Canada’s first NBA championship. Alas for Canada, but fortunately for my sleep, it was not to be on that night.

Restaurant Brands International, majority-owned by 3G Capital (a Brazilian-American investment fund with substantial ownership of Kraft Heinz and Anheuser-Busch InBev), includes the brands Burger King, Tim Hortons, and Popeye’s. Recent shakeups include a new CEO, José Cil, who took the helm in January.

Over the course of years, SGI has engaged RBI and its predecessors in dialogues. Recently, those dialogues have focused on deforestation concerns. In 2010, Burger King pledged to create a “rainforest policy to include all of its products.” However, nearly 10 years later RBI has yet to issue a comprehensive no-deforestation policy that properly addresses its direct operations and extended supply chain.

Photo from https://www.flickr.com/photos/crustmania/10094847976/

Deforestation, the permanent removal of standing forests, results in devastating consequences. It is the third largest driver of climate change. The destruction of trees and other vegetation can cause climate change, desertification, soil erosion, fewer crops, flooding, increased greenhouse gases in the atmosphere, and the incumbent problems for people near to and far from the actual place of deforestation.

Deforestation is also bad for business. It exposes corporations and investors to a wide range of operational, reputational, competitive, and regulatory risks. Companies that manage this risk likely will perform better in the long run. More than 500 global companies have made substantive commitments and the accountability for those commitments continues to improve.

The meeting itself took place in the new central offices of RBI at the Exchange Tower in downtown Toronto. RBI has a lower floor of the building. Emerging from the elevator, shareholders were received and documents were reviewed. In the next room, a larger space, chairs were aligned for the shareholder meeting with two podiums, one to each side of a small table with two chairs– one for Corporate Secretary Jill Granat and the other for CEO José Cil. Along another wall was an array of products from Tim Hortons: coffee, muffins, donuts, donut holes, and the like.

The agenda included the three common voting items: election of directors, the advisory vote on executive compensation, and the appointment of auditors. As well, three shareholder resolutions were on the agenda: a resolution related to workforce practices (put forward by the Atkinson Foundation and our ICCR colleagues, SHARE), our resolution (from the Capuchin Province of St. Joseph) on deforestation, and a resolution concerning plastic pollution and sustainable packaging (from our ICCR colleagues As You Sow). Later in the meeting, SumOfUs delivered a petition signed by 270,000 people and 500 shareholders concerning deforestation. (Their press release can be found here.) None of the three resolutions had a majority, an unsurprising outcome as 3G and Pershing Square own more than half of the company’s shares. The 8-K document filed with the Securities Exchange Commission show that SHARE garnered 26% of the shareholder vote at the AGM, and our resolution and the As You Sow resolution both netted about 22% of shareholder support. If one excludes the 3G Capital and Pershing Square votes, the deforestation resolution had 57% of independent shares in favor.

“Empty Chairs,” photo by Donald Lee Pardue https://www.flickr.com/photos/oldrebel/6173358287

More striking to me as a participant in the meeting was the absence of the board of directors– not one of the elected members of the board attended the meeting. The first order of business in the meeting was their election. It is reminiscent of that meme: “You had only one job. . . ” Their absence suggests that, to them, the annual shareholder meeting is not an important company function.

RBI, according to Cil and company documents, aims to be the world’s “most loved restaurant brands.” The shareholders present at the annual general meeting are people who love this company, and board members did not see fit to hear from them, their fellow shareholders, about the direction of the company.

Similarly, RBI has ambitious, public goals for growth, from some 26,00 restaurants today to 40,000 restaurants in the next eight to 10 years. We’d like to see a similar ambitious, public goal to care for creation. Consumers will buy from a company that advocates for issues they care about. If RBI cannot make ambitious, public commitments to care for creation, those consumers will turn to companies that do.

The deforestation resolution filed with RBI for the 2019 shareholder meeting can be found here. The exempt solicitation concerning the proposal can be found here. The statement delivered at the shareholder meeting can be found here.

Faith-Based Shareholders: In It for the Long Haul

While it may seem like a long time, it is heartening to recall that Moses and the Israelites spent 40 years in the desert, waiting to enter the promised land.

Almost 30 years ago, Fr. Mike Crosby, O.F.M., Cap. began a dialogue with executives from Wendy’s. Concerned that adequate progress was not being made on due diligence concerning potential and actual human rights issues, the Capuchin Province of St. Joseph filed a shareholder resolution on human rights this year. The company challenged the resolution, and the Securities Exchange Commission ruled that the resolution could be omitted. As our resolution had been omitted by the SEC, it would not be coming to a vote, but I attended the shareholder meeting in Dublin, OH on behalf of the Capuchins so as to make a statement to the board and the company officers about our concerns in the area of human rights due diligence.

The team from Wendy’s were very gracious hosts. Having arrived early, a member of the investor relations team took me to visit what had been the office of Wendy’s founder Dave Thomas. I had the opportunity to meet executives who have been on calls with us. Personally, I find it helpful to have a face to put to the voice that I hear on the phone. I also had the opportunity to meet CEO Todd Penegor, board chair Nelson Peltz, and chief legal officer E.J. Wunsch, as well as other members of the board.

The meeting itself lasted a bit over 75 minutes. After a brief video highlighting Wendy’s 50 years, Mr. Peltz opened the meeting. Three items of business were conducted: a vote concerning the board of directors, a vote concerning the company’s auditors, and, finally, an advisory vote concerning executive compensation. The video to the voting was completed within a swift 11 minutes. Next, Mr. Penegor gave an overview of the company’s business plan. Following Mr. Penegor, Liliana Esposito, the chief communications officer, addressed corporate social responsibility and gave an ESG update.

Upon the conclusion of Ms. Esposito’s remarks, the floor was opened to general questions and comments. First, Kerry Kennedy, daughter to the late Robert F. Kennedy, spoke in favor of the Coalition of Immokalee Workers (CIW) and the Fair Food Program. Next, Mr. Peltz recognized me, and I approached the microphone to offer my statement.

My remarks aimed to accomplish four things:

  • To identify the abundant risks for human trafficking and forced labor in agricultural supply chains;
  • To describe the fundamental shift effected by laws here in the U.S. and abroad that, while good and necessary, codes of conduct and audits are no longer sufficient;
  • To outline a better process, employed by many leading companies: a human rights risk assessment that incorporates the U.N. Guiding Principles on Business and Human Rights;
  • And to encourage Wendy’s to take these necessary steps that, at heart, are in accord with the deepest values of the founder, Dave Thomas, and the company.

Subsequently, Chelsea Rudman of the Workers Rights Consortium spoke similarly of the value of worker-driven social responsibility efforts. Lena Brook of the Natural Resources Defense Council spoke about the use of medically-important antibiotics in meat and poultry served at Wendy’s. A shareholder asked a question concerning the updating of restaurant infrastructures. Mike Telford of the National Pork Producers Council thanked Wendy’s for their relationship with pork producers. Nelly Rodriguez, from the CIW, offered a moving witness, in Spanish, about the importance of the Fair Food Program. Another shareholder asked a question concerning non-meat substitutes. Finally, a shareholder, who is also an adoption assessor, rose to speak a word of thanks for Wendy’s commitment to the Dave Thomas Foundation for Adoption. Soon thereafter, the meeting was adjourned.

While the meeting maintained its decorum, no attendee could be blind to the concerns raised by the different voices. While I am disappointed that our resolution did not come to a vote this year, SGI remain committed to working with Wendy’s to improve their practices in the area of human rights.

As the saying goes, Rome was not built in a day. Even after a 40-year sojourn in the desert, the fact is that Moses never made it into the promised land, but he did see it before he died. Faith-based shareholders differ from day traders. We are in it for the long haul. We genuinely care about the companies we engage. We will bring items to their attention that may make company leadership uncomfortable. We do so, because we are committed to protecting people and the planet. We believe that the interests of the company, through the long haul, align with the interests of people and the planet.

The statement prepared for the 2019 Wendy’s shareholder meeting can be found here.

The surprisingly powerful voice of shareholders

By Mark Peters, Director of Justice, Peace and Reconciliation, Priests of the Sacred Heart, US Province, Member, SGI Board

How did I, someone who’s never been much into shopping and stores and has gotten his clothes from Kohl’s since junior high, find myself addressing the CEO, Board and a smattering of shareholders of Macy’s, Inc. in Cincinnati last month? It’s all thanks to a Capuchin priest who had the foresight to see how important corporations would become in the 21st Century.

Fr. Mike Crosby, OFM Cap, died two years ago, but he lives on in the work of Seventh Generation Interfaith Coalition for Responsible Investment. Fr. Mike recruited me back in 2014 and coached me through my first shareholder resolution, which was with TJX, the company that owns TJMaxx, Homegoods and Marshalls. We got 3% of the vote, a victory because you needed that much to bring it back the next year. That time we got under the next benchmark and that was the end of that campaign, though not of our continuing dialogue with TJX. Votes under 5% are not unusual in this line of work! We often plant seeds that don’t bear immediate fruit.

This year Chris Cox, Associate Director of SGI (along with Executive Director Frank Sherman, who was mentored by Mike), directed our resolution with Macy’s, requesting a report on their process for ensuring that no vendor is engaged in forced labor (their byzantine supply chains are the reason their clothes are so cheap and the company is so profitable). Chris consulted with experts in the drafting of the resolution and provided me with lots of material for the dialogue that the company agreed to after we filed. But ultimately the company would not agree to undertake the report, so we did not withdraw, as is sometimes done when a company does make a good faith beginning.

That’s what brought me to Cincinnati on May 17. Someone needed to be present to “move” the proposal, as the Board had made known it’s opposition to it and it would be dropped if no one spoke for it. However, Macy’s was stingier than most with the time they allot speakers, and we were told we had only one minute. So 800 miles driving and a hotel stay, all for the sake of 90 seconds (try and keep me to 60!) of opportunity to sway the votes of a mere handful of shareholders present at the (to me) surprisingly sparsely-attended AGM (annual general meeting) — all of whom, as it turned out, had apparently already voted their shares prior to the meeting.  So I was basically just talking to the board.

But in the end the shareholders spoke to them as well, because our proposal received 40% of the vote!  Chris and I were shocked, but very pleasantly so, as this ensures us a continued seat at the table with the company, and the very real chance of a win next year. Apparently investors are starting to care about human trafficking!

As often happens (and as someone else has done for us with this same proposal at the TJX AGM this week outside of Boston), we’d been asked to move another group’s proposal, this one on transparency on political contributions. I read their statement as well, and that proposal actually received 53% of the vote. I spoke to the Corporate Counsel afterward, and she said the company would likely implement the proposal because of that showing.

A number of other SGI members have had successful outings this proxy season, especially those working on climate change-related resolutions, which for most investors is now clearly a strong value. Now begins the work of readying ourselves for the next season!

Mark’s statement at the annual shareholder meeting can be found here.