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While other corporations may articulate this point differently, it has been my observation that corporate management generally is preoccupied with similar considerations.

Turning to the subject of governance, I do, sir, take umbrage at the charge that corporate managers are beyond anybody's control and that top management is narrow and often dishonest.

In the years that I spent counseling corporations I also served on the boards of other corporations. Since joining Lipton, I have had the pleasure of visiting and knowing a large number of senior corporate officers. I found that very few of them are what I would call "little venal men.”

This is not to deny that there are some rotten apples in the barrel, but to put the matter in perspective, I submit that on a careful statistical analysis you will find no greater percentage of dishonest or amoral corporate directors than among a like sample of doctors, lawyers, Indian chiefs, or even Members of Congress.

Since the board of directors is legally responsible for the conduct of the corporation, there is no question but what board members should be the people of highest caliber. But I know of no way to legislate quality.

A board of directors has the responsibility for establishing the basic policies and the directions of the corporation, a responsibility for selecting the key officers, and establishment of performance standards, and it has the responsibility for monitoring management's performance.

It is just not feasible to expect more out of a board, no matter how it is composed. Individuals who can comprehend numerous aspects of running a corporation, such as finance, law, marketing, manufacturing, are needed and they must comprehend all of these areas. To delegate to one member responsibility for a single aspect of business just does not make sense.

The board is a collegial body, and it must act as one. To suggest that a board, particularly public members, can be responsible for the day-to-day management of business is to demonstrate one's total innocence of how business or any other large organization in our society operates.

If you are a member of a church board, do you expect to make all of the decisions respecting the church? Or in a school board? Or, I would even suggest, that you gentlemen as members of the Senate of the United States delegate a good deal of operational authority of this distinguished body to a select group of your peers and responsible subordinates.

If the board members live up to their responsibilities, all five points of the corporate responsibility star will be satisfied. If the board members are not of high quality, something will suffer.

I submit that an attempt to guarantee the quality of board performance by legislative activity is a little bit like trying to legislate morality.

I recognize that the suggestion is often made that the board members ought to be outsiders and there is a great deal of merit to that, because they bring a different experience to the board. But again to suggest that some rigid kind of formula ought to be applied to percentages of outside directors versus inside directors is to attempt to quantify that which is truly a qualitative judgment. I don't believe that will work.

May I suggest also that before legislating with respect to board responsibility you should give serious consideration to the sensitivity which has grown up over the last 15 years to board responsibility as a result of legislation and litigation.

The number of lawsuits filed against board members, many newly enacted laws-for example, the Employment Retirement Income Security Act provisions respecting fiduciary duty, the continuing expression of concern among board members respecting their responsibilities: all demonstrate the system of board responsibility is functioning

Enactment of legislation which seeks to quantify board size, makeup and responsibility would be to engage in overkill, which would have damaging consequences. Directors bear a fiduciary responsibility to all shareholders; and they may be selected deliberately because they contribute a certain perspective. Their obligations, fixed by law, are to the shareholders as a whole, and direct representation of all affected interests on corporate boards would lead to an unmanageable dilution of responsibility.

Moreover, it would involve a repudiation of the entire premise of the competitive marketing economic system. That system is based on the principle, borne out in practice, that the interaction of various individuals or bodies pursuing their undiluted self-interest will normally lead to optimal social results. It is just as dependent upon shareholders behaving in accordance with their self-interests as it is on employees or consumers behaving in accordance with theirs. The real reason why managers should

be permitted to manage it is not that it is nicer to be able to act that way, but that the welfare of all will ultimately be impaired if they are not.

That takes me back again to my observation with respect to the management finding itself in the center of the five-pointed star, confronted with the hauling and pulling of these various forces, and the responsibility for trying to move the enterprise and all those that it serves forward at what they consider to be the optimum result.

If, for example, a business is not permitted to locate its plant in the area where its costs are lowest because employees can veto a transfer, the benefit of those particular employees is more than offset by the loss to society as a whole. Capital is being forcefully employed in less than optimal use because of the pressure of special vested interests. The accumulation of essentially political interferences with economic decisions leads ultimately to catastrophic market failures and depressed standards of living which are characteristic of planned economies.

It is easy to be destructively critical of the existing system, but very difficult to be constructively critical. In the final analysis, when you are looking at the operations of corporate boards and management, you are studying the dynamics of decisionmaking in a rapidly evolving society. May I, therefore, suggest that before you place additional restraints on the operation of corporations, you remember that business faces two threshold questions at every instance of decisionmaking:

See "The Hazards of Being a Director," Forbes, May 15, 1976, p. 125.

Can the corporation identify what society wants from it; and can it provide, within a profit-oriented framework, what society wants?

The first is identification of the problem. The second is the scope of the demand.

Some will say business profits are too high and increased costs should be absorbed by the producing firms. Profits are, in fact, quite modest, only 12.4 percent on stockholder equity in all manufacturing in the third quarter of 1975, down from 13 percent in 1965. Here is something that Congress and the public must understand: The return to shareholders must exceed by at least a reasonable amount the return on nonspeculative securities, such as Government bonds. Otherwise the capital to provide goods and services of any kind will not be available.

You are now confronted with the question of whether Federal chartering is a device to be used to control corporate enterprise in America. We submit that the advocates of Federal chartering want to use the device to advance their own social and economic policies which by and large they have not been able to sell thus far. In short, their prescription is "old wine in new bottles.”

At the turn of the century, the muckrakers lambasted the corporate trusts for their arrogance and operations and rightly so. The Great Depression of the 1930's was another era in which the role of the corporation was under attack. In fact, both the corporation and the enterprise economy were questioned when the country faced a sustained period of economic uncertainty. Senator Joseph O'Mahoney and the Temporary National Economic Committee which he chaired examined the idea of Federal charters for corporations. Now, however, the situation is quite different as the advocates of corporate chartering would turn over the control of our economy almost completely to Washington at a time when public opinion polls clearly reveal a general disenchantment with Washington's mishandling of the economy in the last decade.

The Federal chartering proposal really is an attack on all the legislation that this Congress has enacted in various fields affecting business. The Federal or State charter is not what matters. The crux of these proposals is to exert more controls and more regulations over corporations through chartering. For example, much of the rhetoric in support of Federal chartering criticizes some aspect of existing Federal control, such as occupational health and safety, environmental protection, consumer product safety, and employment discrimination.

All of these areas are subjects of relatively new Federal legislation, with no indication of enforcement failures because corporations are chartered by the States. If, in fact, there are enforcement failures, the logical solution would be specific legislation addressed to the identified failures. That way, political judgments would be made in the political arena. To assign these judgments to corporate board rooms would leave the principal function of the corporation-producing goods and services—unattended.

» Economic Report of the President, January, 1976, p. 261. The report further shows a return on sales of only 4.9 percent, down from 5.6 percent in 1965.

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Other prominent criticisms concern alleged failures of the antitrust laws-especially failures to breakup major industries under some arbitrary size or concentration criteria.

We are not certain, however, from the committee's notice of hearing whether economic concentration is an appropriate topic of discussion. Since it is an antitrust issue, we submit that it should not be-although one circulated proposal would make Federal chartering an instrument of structural antitrust enforcement. That whole question has been aired by the Judiciary Committee, and any detailed discussion here would be repetitious. We do point out, however, that the bulk of respected expert evidence on the subject argues against the structural antitrust approach. For summaries and citations of the more credible work see the chamber testimony of May 8, 1973.3

In terms of capital incentive, the breakup of corporations on the basis of arbitrary size criterion alone-like constituency directors—would quickly drive private investors from the market.

The heart of the Federal chartering concept is the imposition of more Federal regulation. Today, it is being accepted in all quarters that there is a need for regulatory reform to streamline our regulatory process. It appears to us that this move toward greater regulation is not in step with the prevailing thought of Government officials, businessmen, and consumers.

In summary, we believe: First, there is a concern that corporations are perhaps not as responsive to social considerations as they should be; and, second, suggestions have been made that further legislation is required-specifically, Federal chartering of large corporations.

In response we submit: First, that the concern about corporate responsiveness is exaggerated. We believe the committee has not been given adequate evidence on the subject and that it is being urged to overgeneralize from a few nonrepresentative examples; second, we submit there are adequate laws, State and Federal, already on the books which are working and can be made to work even more effectively through improved congressional oversight.

Third, the proposed remedy of Federal corporate chartering will not cure the alleged problem, because it seeks to quantify that which is not quantifiable, namely, managerial skill.

In closing, Mr. Chairman, I would say, as a corporate director or officer, I sincerely believe that what all of us in the world of business must do is to continue to strive to be more responsive to the felt needs of our fellow man, and that is a matter of morality which can't be legislated.

[The chart referred to follows:]

3 The Industrial Reorganization Act, Hearings Before the Subcommittee on Antitrust and Monopoly of the Committee on the Judiciary, United States Senate, 93d Congress, 1st sess. S. 1167, Part 1 General Views p. 375. See also Concentration Competition and Efficiency U.S. Chamber of Commerce, Washington (19 ).

The basic objective of Thomas J. Lipton, Inc. is to achieve continued profitable growth and expansion primarily with consumer food and beverage products, or with products or businesses logically related to them either through technology or

marketing. We will accomplish this objective in a way that all who deal with Lipton will benefit.

CUSTOMERS Philosophy: . We will provide the best possible product at fair prices

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Strategies: • To provide highaualty Voducts

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Philosophy: Employees are truly productive ind creative vihen they are allowed

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Objectives: To prov!? Stable employment in der PHEVE

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Strategies; To hue and promote on the basis ol abuty, without

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To muy equal to or above competitive wages and sulas • To deal with unions formally and legally

Philosophy Tobe a good corporate citizen
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