Whole Foods: Progress But Still a Lapdog Board

As I previously posted, Whole Foods Splits Positions, WFMI’s shareowners are making progress. Now, I see from their SEC filing they did more than split CEO and Chair positions.

Additionally, our board of directors amended Article IX of our bylaws to provide that, in order for shareholders to approve an amendment to, or a Bylaw inconsistent with, certain bylaw provisions, the amendment or inconsistent Bylaw must be approved by the affirmative vote of a majority of the outstanding shares. This requirement applies to the advance notice bylaws, written consent procedures bylaws, vacancies bylaws, Article III, Section 1 of the Bylaws which pertains to the composition of the Board of Directors, Article VII of the Bylaws which pertains to indemnification, and Article IX of the Bylaws which pertains to bylaw amendments. Previously, the affirmative vote of 75% of the outstanding shares was required to amend, or adopt a Bylaw inconsistent with, those provisions.

That’s great news. Leroy McDowell provided coverage of the change for Westlaw (Corporate Governance Watch: Activist Pushes Whole Foods Toward Simple Majority Voting, 12/29/09). McDowell attributes the change to be the result of “a longer standing shareholder proposal, submitted by the infamous John Chevedden.” McDowell fails to note that Chevedden’s last resolution on the topic won 57% support. Yet, the Board took no action until a few days ago.

Frustrated by the Board’s inaction, I submitted a resolution for the 2010 annual meeting that calls on the Board to establish an independent board committee to meet with me and to obtain any additional information needed before presenting a recommendation to the full Board. Perhaps this pushed the Board to act. While I’m pleased with the move to split positions and do away with supermajority requirements, I’m not so pleased with the explanation offered in the SEC filing.

Whole Foods Market always has strived to maintain high corporate governance standards. In keeping with this goal, the Board added the Lead Director designation in 2000, and since that time, has shifted all of the responsibilities of the Chairman of the Board to the Lead Director. Despite this shift in responsibilities which has rendered the Chairman role to a mere title, the Company repeatedly has received proposals from corporate activists to separate the Chairman and CEO roles. To avoid unnecessary distraction and protect the Company’s corporate governance profile, Mr. Mackey believes giving up the Chairman title to be in the best interests of the Company and its stakeholders. (my emphasis)

From the language, it would appear that Whole Foods is making the changes, not because they believe in good governance but because they want to avoid unnecessary distraction. Additionally, although the changes were made by the Board, it is obvious Mr. Mackey was “the decider,” as our former President would say. On his blog (12/29/09), Mr. Mackey writes, “Was I forced to give up the Chairman’s title? Absolutely not! Both the idea and the decision to give up the title were completely my own… At no time has anyone on the Board or in management ever asked me to give up the title.”

As I indicate in my resolution to Form a Majority Vote Committee, WFMI’s Lead Director, John Elstrott now Chairman, has been on the board for 14-years. That should be a red flag to shareowners. Back in 1996 the relatively conservative National Association of Corporate Directors, in its Report on Director Professionalism, called for term limits. The NACD suggested a term limit of between 10 and 15 years.

After about 10 years, most directors have been completely captured by the CEOs who brought them to the board and who decide their pay and perks. Long-term directors also get too comfortable. They are not generally innovating against themselves.

If Elstrott ever was independent, he should no longer be considered so. Additionally, according to a report from The Corporate Library, three other directors are  outside-related and three owned no stock (Jonathan Sokoloff, Jonathan Seiffer and Stephanie Kugelman). Shareowners should continue to push on directors to invest a substantial portion of their own wealth in the company (not through grants for board service but from their own savings) and should also push on them to act independently.

Mackey was ahead of most with his vision of a shift toward natural food and his adoption of decentralized decision-making, something of an experiment in workplace democracy. Team members meet regularly to decide everything from local suppliers to who should get hired. Democracy seems to have worked well for Whole Foods at the shop floor level. It is time the company also adopted more of a democratic approach with regard to the Board and its shareowners.

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