LEACH v. OLIVA SUPERMARKETS LLC et al

Filing 21

OPINION. Signed by Judge Jose L. Linares on 9/8/15. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DAYID E. LEACH III, Regional Director of
Region 22 of the National Labor Relations
Board, for and on behalf of the National
Labor Relations Board,

Civil Action No.: 15-3174 (JLL)

OPINION

Petitioner,
v.

OLIVA SUPERMARKETS LLC et al.,
Respondents.

LINARES, District Judge.

Presently before the Court are two motions by Respondents: (1) a motion for
reconsideration of this Court's Order dated July 15, 2015 ("Order"), which granted temporary
injunctive relief against Respondents (ECF No. 16.) and (2) a motion to stay the Order pending
resolution of the motion for reconsideration. (ECF No. 17.) The Court decides the motions
without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set forth
below, the Court denies both motions.
BACKGROUND

On December 30, 2014, the Regional Director for Region 22, which encompasses Northern
New Jersey, issued a complaint and notice of hearing, pursuant to Section lO(b) of the National
Labor Relations Act (the "Act") in which the Regional Director alleged that Respondents were
alter egos and had violated 29 U.S.C. § 160(a)(l) and (5) of the Act by repudiating the collectivebargaining agreement and refusing to apply the terms of the collective-bargaining agreement to

employees at Respondents' Whippany, New Jersey location. An administrative hearing regarding
the unfair labor practices alleged in the Complaint was held before a Board Administrative Law
Judge from March 17, 2015 through March 20, 2015. On April 21, 2015, the Board authorized
the Petitioner to seek injunctive relief pursuant to Section 1O(j) of the Act with regard to the
allegations enumerated in the above mentioned complaint.
On May 15, 2015, Petitioner commenced an action against Respondents in this Court
seeking an Order requiring Respondents Olivia and RL to apply the terms and conditions of the
existing collective-bargaining agreement between the United Food and Commercial Workers,
Local 464A ("the Union") and Oliva to the bargaining-unit employees working in Farmtastic
supermarket in Whippany, New Jersey and to bargain with the Union, upon the Union's request.
(ECF No. 1.)
According to the petition, Respondents operated a Foodtown supermarket in Cedar Knolls,
New Jersey ("Cedar Knolls store") from 2004 until the store closed on February 22, 2014. (Tr.
1131, 1261.) On May 9, 2014, RL opened a supermarket named Farmtastic in Whippany, New
Jersey ("Whippany store"), less than three miles away from the Cedar Knolls store. (4 GC Ex. 7;
Tr. 142, 279-280.) Victor Laracca ("Victor") owns a 99 percent interest in Oliva and his wife,
Josephine Laracca ("Josephine"), owns a one percent interest. (GC Ex. 15, GC000056.) Roberto
Laracca ("Roberto"), Victor's son, is listed on the Certificate of Formation, Operating Agreement
and bank loans as the sole owner of RL. (GC Ex. 15, GC000005, GC000025, GC000080.)
However, While Roberto is listed as the owner ofRL, the Whippany store is funded almost entirely
by Victor and Josephine Laracca and the V &V and Oliva businesses. (GC Ex. 28 and 30; Tr. 892893, 904.) Roberto admitted that he was not "involved in the financial part of this deal." (Tr.

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879.)
The Court granted the request for injunctive relief via Opinion and Order dated July 15,
2015. (ECF Nos. 14 ("Op.") and 15, respectively.) On July 29, 2015, Respondents filed two
motions: (1) a motion for reconsideration of this Court's Order (ECF No. 16.), and (2) a motion to
stay the Order pending resolution of the motion for reconsideration. (ECF No. 17.) Petitioner
filed opposition to both motions simultaneously. (ECF No. 19.)

LEGAL STANDARD
Local Civil Rule 7.l(i) governs motions for reconsideration in this District. It requires a
movant to set forth "the matter or controlling decisions which the party believes the Judge or
Magistrate Judge has overlooked." L.Civ.R. 7 .1 (i). To prevail on a motion for reconsideration,
the movant must show at least one of the following grounds: (1) an intervening change in
controlling law; (2) the availability of new evidence; or (3) the need to correct a clear error oflaw
or fact or to prevent manifest injustice. Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013) (citations
omitted).
"To prevail under the third prong, the movant must show that 'dispositive factual matters
or controlling decisions oflaw were brought to the court's attention but not considered."' Mason

v. Sebelius, No. 11-2370, 2012 WL 3133801, at *2 (D.N.J. July 31, 2012)(quoting P. Schoenfeld
Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 2001)). In other words,
reconsideration is not warranted where "(1) the movant simply repeats the cases and arguments
previously analyzed by the court; or (2) the movant has filed the motion merely to disagree with
or relitigate the court's initial decision." CPS MedManagement LLC v. Bergen Reg 'l Med. Ctr.,

L.P., 940 F. Supp. 2d 141, 167-68 (D.N.J. 2013) (internal citations omitted). "Unless a court has

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truly failed to consider pertinent authorities or evidence that could not with reasonable diligence
have been presented earlier, a motion to reconsider a decision (even one that may contain an error)
is generally futile." Id. at 168. Indeed, reconsideration of a decision is an "extraordinary remedy,"
which should be granted "very sparingly." Friedman v. Bank of Am., NA., No. 09-2214, 2012
WL 3146875, at *2 (D.N.J. Aug. 1, 2012).
ANALYSIS

With respect to the motion for reconsideration, Respondents argue that the Court's "finding
that the 'small and intimate' exception was not applicable because the intimate prong was
differentiated or rather non applicable, was based on a mistaken understanding of the facts of the
possible unit members/current employees." (ECF No. 16-1 at 1.) Specifically, Respondents
contend that the Court based its analysis on an understanding that the bargaining unit "grew to
about 26 employees" (Op. at 9-10) when in fact the unit was at most comprised of 24 employees
and currently consists of 14. (See ECF No. 16-2, Cert. of Robert Laracca ifif 2, 5.) Respondents
argue that the "small and intimate" exception should apply, stating in conclusory fashion that "[i]t
really doesn't get much 'smaller' and/or 'intimate' than this." (ECF No. 16-1 at 3.)
Petitioner contends that there is no basis on which to grant Respondents' motion for
reconsideration. According to Petitioner, regardless of the precise numbers, the core of the issue
is that a "significant number of current bargaining-unit employees have not had any experience
with their contractual and collective-bargaining rights, they do not have an ongoing relationship
with the Union, and they have not had long-term working relationships with their co-workers."
(ECF No. 19 at 5.)
The Court agrees with Petitioner that reconsideration is not warranted. The Court notes

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that in analyzing the "small and intimate" exception it focused not on the exact number of
employees, but rather on the size and makeup of the unit immediately following the repudiation
of the Union contract. For example, the Court's analysis focused on the fact that 8 employees
moved from Cedar Knolls to the Whippany location and that after the repudiation of the Union
contract the unit consisted of about 26 employees. In other words, paramount to the Court was the
fact that there was "significant growth of nearly 70 percent of workers in the unit after the
Respondents' repudiation of the contract" and that the new employees "do not have any experience
with the Union, and they therefore have no knowledge of their rights under the NLRA or the
contract." (Op. at 10.) Even accepting Mr. Laracca's Certification as true that the most employees
he ever had was 24, 1 the analysis remains the same-the bargaining unit grew by at least 66 percent
after the Respondents' repudiation of the contract. Accordingly, the Court holds that it did not
commit clear error of law or fact and that Respondents have not carried their burden with respect
to the motion for reconsideration.

CONCLUSION
For the reasons above, the Court denies Respondents' Motion for Reconsideration. (ECF
No. 16.) The Court also denies as moot Respondents' Motion to Stay. (ECF No. 17.) An
appropriate Order accompanies this Opinion.

DATED: September

2015
L. LINARES
TJNITED STATES DISTRICT JUDGE

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The Court notes that no documentary evidence was filed in support of the assertions made by Mr. Laracca. (See
ECF No. 16-2.)

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