Sysco Picketing Lawsuit Hinges on Standard for Secondary Strikes

Recent litigation involving Sysco Corp. has the potential to reshape what’s considered an illegal picket, with the food distributor arguing that unionized workers can’t strike in solidarity with Sysco workers in the Midwest because they technically don’t work for the same company.

The conflict arose earlier this month after Sysco workers in Indiana and Kentucky went on strike over wages and retirement benefits. Sysco workers belonging to Teamsters Local 117 in Washington state followed suit, exercising a clause of their contract that allows them to refuse to cross a “lawful, primary picket line,” according to court records.

In a complaint filed in US District Court for the Western District of Washington, Sysco Seattle argued that the workers there couldn’t join the picket because its operation is a separate entity from Sysco Louisville and Sysco Indianapolis.

While the strikes in Indianapolis and Louisville have already ended, the pending lawsuit raises the question of whether large, multi-pronged corporations are one employer or multiple employers under the law.

The answer isn’t immediately clear.

For example, “it might not be a single employer for business purposes, but it may be a single employer for secondary boycott,” said Anne Lofaso, a labor law professor at West Virginia University.

Sysco spokeswoman Shannon Mutschler declined to comment, citing the ongoing litigation. Teamsters Local 117 spokesman Paul Zilly also declined to comment.

Scabby the Rat, a union icon, shames workers who cross picket lines

Photographer: Timothy A. Clary/AFP via Getty Images

Who’s the Boss?

Although the three entities share the Sysco name, that’s where the similarities end, the company is arguing.

Each regional arm services a specific geographic area with no operational overlap, and the duties of unionized workers are “not shared in any manner,” Sysco Seattle wrote in the complaint.

Picket lines are sacrosanct for unions; they serve as the linchpin of leverage during a strike by ensuring that workers collectively withhold their labor. Thus, unions try to avoid undermining one another by crossing them. Workers who do are derisively branded “scabs.”

While federal law allows workers to strike against their employers, it doesn’t extend to third parties. For example, workers at a soda company could picket at their bottling plant, but not at grocery stores selling the product.

That distinction—called a secondary strike—is meant to shield neutral bystanders from getting caught up in unrelated labor disputes.

But the Labor-Management Relations Act also permits sympathy strikes—unions striking in support of one another—which are different from secondary strikes.

The distinction has arisen in cases in federal court and before the National Labor Relations Board, which have weighed a variety of factors, including ownership structure, operational integration, and centralized control of labor relations.

“Because they hold themselves out as part of the Sysco family, I would say that’s historically enough for them to be considered a primary employer,” said Mark Gaston Pearce, who chaired the NLRB during the Obama administration and now serves as executive director of the Workers’ Rights Institute at Georgetown University Law Center.

Sysco Seattle might be able to prove that its separation from the other regions makes it “wholly unconcerned” with the disputes in Indianapolis and Louisville, Lofaso said.

“The company is making a good argument, in theory,” she said, “but it’s going to come down to the facts.”