Circuit Roundup

4th Circuit
Employer Had Right to Remove Union
The 4th Circuit ruled July 25 in NLRB v. B.A. Mullican Lumber & Mfg. Co. that an employer correctly withdrew recognition from a union based on substantial objective evidence that the union had lost majority support.

In September 2001, a little more than a year after their union was certified, a majority of bargaining-unit employees filed a decertification petition. The union continued to try to ratify an incomplete collective bargaining agreement. Meanwhile employees began to give the employer information that convinced it that the union had lost majority support. On the basis of this evidence the employer withdrew recognition in June 2002.

While an employer is prohibited from soliciting such information from employees, it is free to accept and act on information that is freely volunteered.

The NLRB administrative law judge agreed the union lost majority support but ruled that the employer had wrongfully withdrawn recognition without proof that the union had lost support.

On appeal, the 4th Circuit disagreed, finding that the employer had substantial objective evidence that the union had in fact lost majority support.



5th Circuit
Walgreens Fights for Mail Drug Plan
Walgreen Co., along with its mail prescription company Walgreens Mail Service Inc., sued rival CVS Caremark Corp., based in Woonsocket, R.I., for allegedly blocking access to a Tennessee mail-order prescription program.

According to an Aug. 1 complaint filed in District Court in Nashville, Tenn., CVS Caremark prevented Walgreens from getting the same terms for a mail-order plan offered by Blue Cross and Blue Shield of Tennessee (BCBST). The Deerfield, Ill.-based company claims CVS Caremark is the only pharmacy able to dispense drugs by mail through the program.

Walgreens requested to participate in BCBST's mail order program under the same conditions as CVS Caremark. BCBST is required by law to offer all pharmacies the same terms. BCBST instructed CVS Caremark to forward to Walgreens the terms and conditions it had in place for mail order services with BCBST. Walgreens claims CVS Caremark refused to do so and instead pursued a scheme to deny Walgreens the right to join the BCBST networks on the same terms as CVS Caremark.



7th Circuit
Fertility Treatment May Fall Under PDA
A three-judge panel ruled July 16 that women who need time off work for infertility treatments may invoke the Pregnancy Discrimination Act as potential protection against adverse action. In Hall v. Nalco Co., Cheryl Hall was laid off after asking for time off for a second round of in vitro fertilization. Hall's first embryo transfer procedure
in 2003 failed.

Hall's lawsuit states her supervisors singled her out for layoff before the second leave, citing absenteeism for
infertility treatments. Without ruling on the merits of her case, the court set a precedent by allowing Hall's suit against her former employer for pregnancy-related bias to go forward.

Courts in other cases have held that because both men and women experience infertility, sex-bias protections don't apply. In this case, the court held that because only women undergo time-consuming in vitro fertilization, they may be protected by sex-bias law. Treatment for men usually takes less time.

Nalco is seeking a rehearing before a full 11-judge panel of the court.



11th Circuit
Coca-Cola Protects 'Zero' Trademark
The Atlanta-based Coca-Cola Co. filed a lawsuit June 12 in the U.S. District Court for the Northern District of Georgia against Illinois-based Bluesprings Water Co. to keep it from suing the soft drink conglomerate over its "Zero" line of calorie-free soft drinks.

Evidently, the effort failed. Bluesprings along with its president, Mirza N. Baig, launched a lawsuit against Coca-Cola July 25 claiming it stole the idea for selling Zero-brand no-calorie drinks.

Coca-Cola petitioned the court for a declaratory judgment that the company's use of the word "Zero" for its diet soft drink products does not infringe or misappropriate any intellectual property of Bluesprings, a bottled water company, and its product Naturally Zero Canadian Natural Spring Water.

According to Coca-Cola's suit, Bluesprings' president has repeatedly threatened Coca-Cola with legal action since Coca-Cola introduced Diet Sprite Zero in the U.S. in 2004. According to the complaint, Baig filed an application with the U.S. Patent and Trademark Office in 1997 to register a trademark that included the words "Naturally Zero Canadian Natural Spring Water" and began selling water bearing the name. In November 2005, Bluesprings abandoned the trademark application and stopped selling the water. Coca-Cola's current marketing campaign for Coke Zero features television ads of Coca-Cola managers who want to sue their Coke Zero counterparts for taste infringement.

Managing Editor

Yesenia Salcedo

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