A union effort to attack the nonunion Fresh & Easy grocery chain by forcing it to put price tags on each individual item, instead of using shelf tags, has fallen short again, with an appeals court ordering the plaintiffs to pay the company's legal costs.
Grocery workers' unions have battled the chain for years, picketing stores, producing attack literature and funding efforts to organize employees.
Two years ago, they found a new battleground: price tags.
Saying Fresh & Easy violated a little-known California law that requires a "clearly readable price" on 85 percent of packaged goods, three union officials sued the store in 2010.
The men, all employees of United Food and Commercial Workers affiliates, said they visited several Fresh & Easy stores -- including one in Van Nuys -- checked products on the shelves and found the stores didn't meet the requirements.
In the midst of a trial in Los Angeles Superior Court last year, the grocer's lawyers asked Judge John P. Shook to rule in their favor without having them put on a defense.
The judge agreed, finding the plaintiffs' testimony was not credible and they had misstated what the law requires.
On Thursday, an appeals court also ruled in Fresh & Easy's favor and ordered the union employees to pay the chain's appeal costs.
The Legislature passed the Rosenthal-Roberti Item Pricing Act in 1981, replacing a similar 1977 statute. But the law
has rarely been tested.
Daniel Herling, who represented Fresh & Easy, said the case decided Thursday appeared to be the first time an appeals court had ruled on the Pricing Act.
In a statement after the trial court ruling, his law firm said a win for the union would have forced Fresh & Easy to hire new workers and return to "1970s-style" price tags, resulting in increased costs to customers of perhaps 10 percent.
The plaintiffs were Rick Eiden, an executive vice president for an Orange County union; Tom Elbert, who's with a Los Angeles County union; and Rod Diamond, who colleagues said recently retired from the UFCW. They and their lawyer did not return calls Friday or couldn't be reached.
It's been decades since most stores had price tags on every item. Herling, who is in his 50s, said he once had a job stamping prices on bread for Pepperidge Farm.
Fresh & Easy argued the plaintiffs' reading of the law was absurd in an era of digital scanners, when prices are listed on every shelf. The trial judge agreed and also discounted testimony of two former employees who said customers often complained about pricing discrepancies.
"The court noted that the witnesses who were union representatives lacked recent experience in the grocery industry and had entered the Fresh & Easy stores not as consumers but at the direction of the union director for the express purpose of looking for statutory violations," Court of Appeal Justice Victoria Chavez wrote for a three-judge panel. "The trial court found that the witnesses who were former Fresh & Easy employees were biased against Fresh & Easy because they had been fired."
More importantly, perhaps, the courts said the language of the law doesn't mean each item has to have a physical price tag. The intent of the Legislature was to give consumers more pricing information, and the judges said so-called "shelf edge labels" -- the kind used in most stores these days -- suffice to do that.
Shook said the testimony of the three plaintiffs came nowhere close to proving their case. Elbert testified he inventoried a store himself in 90 minutes, counting 5,080 shelf tags and picking up a couple of hundred items. The judge appeared to find that improbable, according to a transcript of his questions.
Eiden called his own estimates of how many products were labeled a "guesstimate" and took no notes. Diamond also took no notes during his visits to stores.
The union was not a party to the case, but all three said they were ordered to visit the stores by UFCW management, and they were represented by longtime union attorney David Rosenfeld.
Fresh & Easy, which is owned by British grocer Tesco and opened its first stores in 2007, could have faced steep fines if found in violation. The law calls for civil fines of $25 to $500 per offense, with each day products aren't labeled considered a separate violation.
"Obviously it had high stakes for my client, because if they had lost, they might have had to change their business model," Herling said.