Article 43
Thursday, August 31, 2006
Union Rights Of Eight Million Workers At Stake
Supervisor in name only
Union rights of eight million workers at stake in Labor Board ruling
by Ross Eisenbrey and Lawrence Mishel
Economic Policy Institute
The National Labor Relations Board (NLRB) will soon decide three cases, known collectively as the Kentucky River cases, which could change the basic rights of workers in America. If the NLRB accedes to the demands the employers are making in these cases to significantly broaden the definition of “supervisor,” hundreds of thousands of employees could be stripped of their contract protections and millions more across the economy could be denied the right to form unions or engage in collective bargaining.
The National Labor Relations Act (NLRA), the nation’s primary law determining the rights of employees to join unions and bargain collectively, excludes “supervisors” from the definition of “employee” (29 USC 152 (3)). A “supervisor” is defined as:
any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. (29 USC 152 (11))
The three cases are: Oakwood Healthcare Inc., Golden Crest Healthcare Center, and Croft Metals, Inc. The cases deal respectively with registered nurses (RNs) acting as “charge” nurses in a hospital; “charge” nurses (RNs and LPNs) in a long-term care facility; and “leadmen” and “load supervisors” in a manufacturing facility.
The upcoming cases all involve whether these employees can be classified as supervisors and thus excluded from NLRA protections and participation in collective bargaining because they “responsibly direct other employees” while using “independent judgment.” But until now no one would have called these employees “supervisors” in the traditional sense because they do not have authority to hire, fire, discipline, evaluate, or promote the employees they supposedly supervise.
Skilled and experienced workers such as registered nurses, who give instructions to co-workers about how and when to perform certain tasks, are particularly vulnerable to reclassification as supervisors under this push for a broader reinterpretation of the term. For example, nurses who tell orderlies or nurse aides to do certain things for particular patients are at high risk of reclassification, as are journeymen construction workers who guide other workers on a crew.
These forthcoming decisions have the potential to affect a wide range of workers, including many in the building and construction, broadcast, energy, shipping, accounting, and health care industries. The very broad definition of “supervisor” employers are seeking ultimately could take away the right to join a union and bargain collectively from 8 million Americans throughout the labor market.
We have analyzed the potential impact of the decisions in two ways: by examining the supervisory duties associated with the occupations involved in dozens of cases pending before the NLRB or its hearing officers, and by examining the supervisory duties of the entire U.S. private sector workforce that is covered by the NLRA. Looking just at the dozens of pending cases, the position advocated by the employers involved would lead to the exclusion of approximately 1.4 million employees as supervisors. Across all occupations, this extreme employer-centric position would strip 8 million more workers of their right to participate in a union and bargain collectively, adding to the approximately 8.6 million first-line supervisors that the GAO estimates have already been excluded by prior interpretations of the NLRA.1
In each of 35 occupations, ranging from registered nurses and computer systems analysts to private guards and police officers, more than 50,000 employees could lose their right to join a union or bargain collectively.
In 24 occupations, including physician assistants, tile setters, and registered nurses, more than 30% of those employed could lose their union rights.
The occupations involved in the cases we reviewed that are pending before the NLRB or its administrative law judges include at least those listed in Table 3, if not more.
Method of Analysis
The estimate of the effect of reclassifying these workers as supervisors and removing them from NLRB coverage was calculated using data on the share of each of 447 detailed occupations affected and the employment level in each occupation.
Specifically, we employ the Bureau of Labor Statistics’ estimates of the share of each occupation that has so-called “supervisory” duties. This share is based on the factors provided in the Bureau of Labor Statistics’ National Compensation Survey, which assigns a level to each occupation according to its skill content along 10 dimensions, including knowledge, complexity, personal contacts, and so on. One of these 10 “leveling factors” is “Supervisory Duties,” describing “the level of supervisory responsibility for a position.” We have identified that those having supervisory duties at what NCS calls “Level 2” will be impacted by the potential ruling. The U.S. Department of Labor provides a description of “Level 2” duties on page 177 of Bulletin 2561, National Compensation Survey: Occupational Wages in the United States, July 2002:
Incumbent sets the pace of work for the group and shows other workers in the group how to perform assigned tasks. Commonly performs the same work as the group, in addition to lead duties. Can also be called group leader, team leader, or lead worker.
To estimate the effect of excluding employees who work at supervisory Level 2, we needed to identify the employment levels in each occupation. BLS kindly provided an estimate of the share of private, non-farm employment in each occupation in 2002. Some information on “confidential employment” was excluded, and as a result the occupation shares totaled 99.6% rather than 100%. We rescaled the share to allow them to sum to 100%. We multiplied each occupation’s employment share by the total non-farm, private payroll employment in 2005.
Given these data, the impact on each occupation is simply the share affected multiplied by the employment level. The total affected is the sum of the impact of the individual occupations.
LABOR LAWS NO LOGER PROTECT
UNIONBUSTING DATA
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Census Shows Middle Class Squeeze
Working Families Fall Behind
by Jared Bernstein and Elise Gould
Economic Policy Institute
Aug 29, 2006
Although income improves for the first time in the current recovery, poverty remains unchanged and inequality rose in 2005.
After falling each year since the economic recovery began in 2001, the income of the median household grew 1.1% (or $509) in inflation-adjusted terms last year. Poverty rates, which have risen consistently over the recovery, were unchanged, according to today’s release from the Census Bureau. Income inequality also rose in 2005, as households at the top of the income scale saw greater income growth than everyone else.
However, the median income of working-age householdsthose headed by someone less than 65 - fell 0.5% last year, as has been the case consistently since 2000. In addition, today’s report reveals that the median earnings of both men and women fell significantly in 2005, by 1.8% for men and 1.3% for women. Together, these facts suggest that working families fell behind in 2005.
In fact, the only households with significant gains in 2005 were those headed by someone 65 or older, whose median income was up sharply by 2.8%. It will take more analysis to evaluate the source of this growth, but given the negative earnings outcomes, it is likely their gains came from non-labor income, including Social Security (a benefit that is automatically indexed to inflation).
A longer-term view confirms the extent to which non-elderly families have fallen behind in recent years. Between 2000 and 2005, the real median income of households headed by someone under 65 is down 5.4%, twice that of the overall household median, which is down 2.7% over the past five years.
Thus, despite the positive overall median income growth of 1.1%, other evidence in today’s report suggests that this recovery is still leaving working families behind.
Two important concepts for understanding today’s Census data and the economic fortunes of Americans are the median household income and the poverty rate. The median household is the one right in the middle of the income scale: half of all households have higher incomes and half have lower. The poverty rate measures the share of persons in households with incomes below a minimum threshold, adjusted for family size. In 2005, the threshold for a four-person family was $19,971.
Last year’s gain in median household income is the first since 1999, and as such is a welcome reversal in trend. But it has come late in an economic recovery that is already losing steam. As noted, median income is still 2.7% below its level in 2000 (the last economic peak), a loss of about $1,280 to the typical household (in 2005 dollars).
Yet the economy has expanded considerably over these years. Gross domestic product (GDP), the broadest measure of economic growth, is up 12.5% from 2000 to 2005; productivity, or output per hour, is up 16.6% in that period. This latter measure is particularly important because it is widely considered to be a key determinant of living standards. Yet the income of the median household is still below its 2000 level, and the poverty rate, at 12.6%, remains well above its 11.3% level in that peak year.
This pattern of faster overall growth amid worse economic outcomes for median households and working persons implies growing inequality, as those at the top of the scale claim a disproportionate share of the growth. Over the longer term, today’s Census Bureau data reveals that the share of all national income accruing to the richest fifth of households 50.4% is the highest share on record going back to 1967. The middle fifth receiving 14.6% of total income - and the bottom fifth receiving just 3.4% - are tied with recent years for the lowest shares on record.
As for health insurance coverage, the overall number of Americans without health insurance increased for the fifth year in a row. Up nearly seven million since 2000, to 46.6 million in 2005, the share of uninsured Americans has increased from 14.2% to 15.9%.
In another example of the difficulties facing working Americans, the greatest declines in health insurance coverage occurred in employment-based insurance, which has dropped every year since 2000. In 2000, 63.6% of the population had employment-based coverage. By 2005, this rate had dropped to 59.5%.
There was a significant increase in the number of uninsured workers between 2004 and 2005. In 2005, 18.7% of all workers were uninsured. Most strikingly, however, is the fact that full-time workers experienced lower rates of coverage in 2005, while part-time workers did not. There were nearly one million more uninsured full-time workers in 2005 than in 2004, with a significant increase of 2 percentage points in the share of uninsured workers since 2000.
In other words, the economic growth of the last few years has largely bypassed middle- and low-income families, and especially working families. Other data sources, such as the national income accounts, reveal historically high growth rates of “non-labor income” such as corporate profits, suggesting growth has been eluding wage earners and flowing up the income scale to those with high levels of assets. Today’s data corroborate this dynamic, showing that the gains that did occur tended to show up among higher income households, and not among those who depend on their paychecks to get ahead.
Note: This report deals exclusively with income and poverty data from the Current Population Survey (CPS). The CENSUS.
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Wednesday, August 30, 2006
AT&T Hacked
Yahoo News
August 30, 2006
Hackers illegally accessed a computer system and stole credit card information and other personal data from thousands of customers who purchased DSL equipment from an AT&T online store, the company said Tuesday.
AT&T Inc. said the system was hacked into over the weekend. The data of “fewer than 19,000 customers” were affected, the company said.
AT&T said it shut down its online store selling the high-speed Internet access equipment and would pay for credit monitoring services for the people whose files were accessed. The San Antonio-based telephone company notified the major credit card companies whose customer accounts were affected.
It also sent notification to customers involved via e-mail, phone and letter.
“We recognize that there is an active market for illegally obtained personal information. We are committed to both protecting our customers’ privacy and to weeding out and punishing the violators,” Priscilla Hill-Ardoin, AT&T’s chief privacy officer, said in a statement.
The company said the unauthorized access was found within hours of the breach.
AT&T spokesman Walt Sharp said no fraudulent charges had been reported so far. He said he could not specify on which day the breach occurred, but said routine security monitoring promptly identified it.
Forensic teams and law enforcement are working to determine how the theft occurred and who was responsible, he said.
Sharp said AT&T’s online store for DSL equipment was the only company site infiltrated by the hackers. Subscribers to DSL service were not affected. Sharp said the company’s online store selling telephones was not affected, but was also shut down as a precaution.
Todd Stefan, vice president of Setec Investigations, a Los Angeles-based computer security consulting firm, said such computer breaches are rising. Just this year, high-profile personal data breaches have affected a range of enterprises, from the U.S.
Department of Veterans Affairs to AOL to Ohio University.
“There is a very large underground international community often led by organized crime that traffics in illegally obtained information, specifically credit card information,” he said. Credit card numbers are often sold in bulk in underground chat rooms.
Beth Givens, director of the Privacy Rights Clearinghouse, a California-based non-profit, said her group has tallied more than 170 publicly disclosed security breaches nationwide of sensitive personal information so far this year.
A Texas law enacted last year mandates that companies disclose such security breaches to the public.
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Congressional Election Nullified - Nobody Noticed
By Michael Collins
SCOOP
August 25, 2006
It appears the US MEDIA overlooked one of the great political stories of the year. In what is becoming something of a pattern, heres a brief chronology:
On June 6, 2006 Republican Brian Bilbray allegedly slightly outpolled Democrat Francine Busby in the special election for California’s 50th Congressional District, despite Busbys lead in the polls going into the election. There were immediate cries of foul following the election due to major irregularities, including electronic voting machines sent out to the homes and cars of volunteers for up to 12 days prior to the election, and irregular election results like huge mega-precincts of absentee ballots where turnout was thousands of percent more than registered voters.
On June 13, 2006, Bilbray flew to Washington, DC and was sworn in as a member of the United States House of Representatives by House Speaker Dennis Hastert.
On or about June 30, 2006, 17 days after Bilbray was sworn in as a member of the House, Mikel Haas, Registrar of San Diego County, officially completed the audit of election results required for certification, and officially certified the election of Bilbray over Busby based on 163,931 votes cast, of which 2,053 votes were said to be cast on Diebold TSX touchscreens, and the remainder scanned via Diebold Accuvote OS computers.
On July 31, 2006, the Contestants filed an election contest, seeking a hand recount and to invalidate the election on several grounds, not only including the affirmative evidence of irregular results, but also including the stonewalling of citizen information requests and the pricing of recounts at an estimated $150,000 that made it difficult or impossible for any citizen to tell who won the election.
On August 22, 2006 the defendants moved to dismiss, arguing that the swearing in of Bilbray deprives everyone else of jurisdiction including specifically the San Diego Superior Court because Art. I, sec. 5 of the US Constitution has been held to mean that the House and Senate are the judges of the Qualifications of their Members, one of those qualifications is supposed to be ғelection.
There is some thing very wrong with this sequence. Elections are not complete, anywhere, until they are officially certified by local authorities. How can a citizen get sworn in as a member of the House of Representatives before his or her election is certified? Only Speaker Dennis Hastert, his team, and Bilbray have the answer.
In a filling in San Diego Municipal Court yesterday, attorney Paul Lehto outlined the core in stark terms:
Defendants are in effect arguing for the remarkable proposition that unilateral self-serving actions by a majority party in the House of Representatives to shuttle in a member of the same party can be effective, even if those actions do violence to and amount to circumvention of other sections of the US Constitution as well as the California constitution. Documentavailable here.
Lehto is one of the two attorneys representing citizens who are challenging the election. Shortly after the last vote was cast, citizens discovered disturbing facts. Prior to Election Day, several poll workers had taken home voting machines for periods of a day to a week at a time without supervision or even consistent tracking procedures. Other irregularities like vote switching on touch screen machines emerged. BRAD FRIEDMAN conducted an extensive investigation that uncovered a series of sloppy procedures by County Registrar Haas.
The election became an immediate cause for citizens, supporters of the losing candidate, and national voting rights activists. The results were also challenged by Howard Dean, Chairman of the Democratic National Committee.
A suit was filed by two local citizens challenging the election. The initial filing relied on the right of citizens to know that their votes are and counted correctly in order to assure that the candidate designated as the winner is in fact the winner. Part of the suit is a request, denied to date, for a recount of the ballots cast on Election Day.
In response to the suit, the County of San Diego filed a response questioning the authority of the local court to decide the case since (a) membership in the house was the province of the House of Representatives and (b) the speaker had already sworn in Bilbray.
Lehto and Simpkins filed a withering response to this argument. They point out that elections are the province of local and state authorities for all elections including federal contests, unless otherwise specified in the constitution. The following is form the filing yesterday:
Clearly, the swift swearing in did not end the election in the 50th Congressional District, and it did not render everything, including the certification of results weeks later, nugatory and without jurisdiction. If this swearing in had this effect, then in the course of dismissing this case the Court would be bound to conclude that the certification of the results after the swearing in of Bilbray was without force and effect, without jurisdiction, and in contravention of principles of federalism, as Defendants argue. That conclusion, however, requires either an absurdity, or the conclusion that our Congressional election was canceled by decision of the Speaker of the House, before all the votes were fully counted, and well before certification. Documentavailable here.
So there you have it. Dennis Hastert, Speaker of the United House of Representatives, called the “Peoples House,” now has the authority to nullify elections simply by swearing in candidates and claiming federal privilege based on one narrow section of the constitution, while completing ignoring the others, including the one stating that members of the House shall be elected every two years by the People, and not selected in Washington DC. Once again, the country is faced with a Bush v. Gore style selection manufactured in Washington DC, and if only the people did not know which party benefited and which party was hurt by the selection, the country would be unanimous in denouncing this power grab.
Ongoing support and interference by the House of Representatives or persons associated therewith continues in San Diego. Paul Vinovich, Counsel to the House Administration Committee, Chaired by Bob Ney, R, of Ohio, had a letter delivered to San Diego Superior Court presiding Judge Yuri Hoffman, with a number of arguments in favor of the Judge dismissing the case. This type of communication with members of the judiciary, particularly when another government authority is involved, is covered by strict rules. One such rule is that the ex parte communication be provided simultaneously to counsel for all involved. In his own hand, Vinovich says to plaintiffs attorney Lehto, ԒLetter delivered to court last evening. Lehto received the fax at 8:56 a.m. Thursday morning, many hours after the letter was admittedly provided to the judge by Vinovich.
In the letter, Vinovich admits the time sequence of a July 13 swearing in followed by a July 29th certification of the election and then, through circular reasoning, tries to use the certification as justification for the swearing in ceremony. He fails to note that Speaker Hastert would have needed psychic powers on June 13th to know that the swearing in of Bilbray would be justified by a June 29th certification.
We’re clearly at the point where members of the ruling party are making up rules post hoc to justify whatever actions they wish to take. We are also at a point where there is little if any opposition to this. The House is silent. With the exception of local and national voting rights activists and Chairman Dean, the opposing party is silent. The Defendants literally argue that the Courts are powerless to stop them (without jurisdiction). Friday will reveal whether the courts are powerless to stop this abuse of power and premature termination of elections.
Will Judge Yuri Hoffman carry on the emerging tradition of silence, or will he take us back to the courage and integrity shown by Judge John Sirica, a Republican appointee, who made history by demanding the truth from the Watergate burglars?
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Tuesday, August 29, 2006
Kiss AOL Privacy Goodbye
Consumer advocates criticize AOL’s free Active Virus Shield antivirus software licensing agreement.
By Robert McMillan, IDG News Service
August 17, 2006
Just days after posting details of searches made by hundreds of thousands of subscribers, AOL is in hot water again with consumer advocates. This time the issue is with the company’s Active Virus Shield anti-virus software, released last week.
At issue is the software’s licensing agreement, which authorizes AOL to gather and share data on how the software is being used and permits AOL and its affiliates to send e-mail to users. “If you go through the installation, just as any normal user would, there is not the slightest hint of any advertising functionality or data gathering of any kind,” said Eric Howes, director of malware research at anti-spyware vendor Sunbelt Software.
ACTIVE VIRUS SHIELD uses Kaspersky Lab’s well-regarded anti-virus software, and comes with an optional security toolbar that blocks pop-up ads and manages passwords. The software is available for free to anyone who wishes to download it.
Concerns
Although security experts, including Howes, say that Active Virus Shield does not behave in a malicious fashion or serve up unwanted ads, some are concerned that the product’s end user license agreement (EULA) would allow AOL to send spam or serve up adware at some point in the future. “If it actually does any of the things stated in the EULA, we would actually flag it as spyware,” said Christina Olson, a project manager with STOPBADWARE.ORG.
The Active Virus Shield agreement gives AOL much broader rights to collect information and then to share that information with third parties than typical EULAs, observers said.
A prohibition against blocking ads also caught Olson’s attention. “If you have any ad-blocking software up, you’re basically violating their EULA, which is ridiculous,” she said.
AOL in the News Recently
AOL’s licensing problems come at a sensitive time for the company. Earlier this month the Internet service provider weathered a public relations disaster after an AOL researcher inadvertently EXPOSED DATA on about 19 million Web searches performed by 658,000 users.
After being contacted by IDG News, AOL said it now plans to alter the licensing agreement. “We are updating the EULA to address any concerns,” said Andrew Weinstein, a company spokesman. “We are reserving the right solely to send periodic marketing e-mails that users will have the choice to opt out of.”
Adding to AOL’s troubles is the fact Active Virus Shield’s security toolbar is based on a product with a questionable reputation. An earlier version of this software, known as the Softomate toolbar, is flagged as adware by Kaspersky’s own anti-virus products.
“We don’t use the earlier code because it was used by a malware provider,” Weinstein said. “That’s why Kaspersky looks for it.”
Similar to Sony Rootkit Issue?
While AOL’s toolbar is not considered to be adware, observers say that AOL, which prides itself as a fierce opponent of adware and spyware, could have based its own toolbar on a better product. “I don’t understand how a legitimate company like AOL provides software that can be classified as rogue,” said Aviv Raff, a security researcher based in Israel.
After examining AOL’s toolbar, Raff discovered a flaw in the software that would allow hackers to change the toolbar’s configuration options. While the flaw does not in itself present a security risk, it could be used in combination with other types of malicious software to do things like pop up bogus search results, he said.
“The problem is similar to the Sony rootkit issue,” Raff said referring to Sony BMG Music Entertainment’s NOTORIOUS COPY PROTECTION SOFTWARE, which was found to be the source of security issues late last year. “A big company chose an external company’s software and rebranded it as their own, later to discover it might be bad after all,” he said.
Erik Larkin of PC World contributed to this story.
THE PLOT TO HIJACK YOUR COMPUTER
WINDOWS PRIVACY FLEW OUT THE WINDOW
CORPORATE GREED AND MICROSOFT
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