Over 1,000 incarcerated workers fought the fires that devastated Los Angeles last winter. Each day, they earned less than a quarter of what the average non-incarcerated firefighter makes in a single hour. These miniscule wages save the state of California around $90 million a year. Meanwhile, due to the lack of basic worker protections afforded to incarcerated firefighters, they face a much higher risk of injury and exposure to harmful particulate matter than the average firefighter.
Confronted with such poor wages and dangerous working conditions, American workers have long turned to collective action to safeguard their interests. Yet for incarcerated workers, the right to organize and collectively bargain is often presumed dead. In 1975, in response to a growing labor movement at one of its prisons, the North Carolina Department of Corrections restricted inmates’ access to its internal mail system. The incarcerated organizers sued, arguing that the regulation, along with other restrictions, violated the First Amendment. In the ensuing 1977 case, Jones v. North Carolina Prisoners’ Labor Union, the Supreme Court declared that while incarcerated workers had a First Amendment right to identify as members of a union, their protections stopped there. In other words, their ability to organize, communicate, advertise, recruit, and coordinate may be subject to the regulations of their correctional institution.
As a result, incarcerated people are often left with three options: they work inside the prison, often for no wages at all; they face punishment for refusing to work; or they are chosen to work a paid job on the outside for paltry wages. This last category—so-called “work release” jobs—thus represents merely a small fraction of the labor performed by incarcerated workers. Yet, as I argue in this brief post, these outside roles also offer an opportunity for traditional labor unions to open new avenues for incarcerated worker organizing rights. Unions should test the strength of the legal boundaries between incarcerated labor and the “traditional” labor market that have been erected by decades of court precedent. To do this, they can attempt to include incarcerated workers in their organizing drives at fast food restaurants, factories, and other workplaces. If successful, these efforts would guarantee incarcerated workers organizing rights through the National Labor Relations Act and could strengthen organizing activity within prison walls. Thus, a union could “lend” its established statutory rights to incarcerated workers, who in turn could use such rights to expand organizing within prisons and jails.
A Community of Interest
California’s incarcerated firefighters are, of course, just a small part of an economy of goods and services made and staffed by incarcerated people across the country, which is estimated to be an industry worth over $11 billion. While historical conceptions of prison labor often evoke visions of the chain gang separated from “free” workers, incarcerated work is increasingly integrated into the traditional economy. An auto parts manufacturer in Montgomery, Alabama, draws half of its staff from the traditional economy and the other half from a state convict lease program. Alabama also sends incarcerated people to work at McDonald’s, Wendy’s, Golden Corral, and other fast food restaurants alongside non-incarcerated staff. These workers, I suggest, should band together to form united unions among incarcerated and non-incarcerated workers.
Such a move would not be unprecedented. During the mid-20th century, when convict leasing was still common in the southeastern United States, the National Labor Relations Board recognized several bargaining units that included workers who were in prison and “free.” In 1964, for example, Winsett-Simmonds, a construction company, challenged the unionization of their employees on the grounds that no sufficient community of interest existed between their direct employees and workers who labored at the company as part of a work-release program of the Tennessee Department of Correction. The NLRB sided with the workers. Because the company had similar forms of control over the day-to-day activities of all prospective members—including control over wage structure and the ability to hire and fire workers—the Board ruled that all workers at the company had a community of interest.
A later case brought by Rosslyn Concrete Construction Company in 1983 expanded this opening. In that case, an appeals court granted enforcement to an NLRB order that found a sufficient community of interest among incarcerated and non-incarcerated workers. The Board followed its precedent in the Winsett-Simmonds case even though the Department of Corrections of the District of Columbia, unlike the Tennessee Department of Corrections, could remove work-release employees at will and significantly garnish their wages.
These cases won’t get advocates all the way to incorporating today’s incarcerated workers into existing unions. They represent exceptional arrangements, particularly as incarcerated workers were on the same wage schedule as their employee counterparts. However, these cases nonetheless offer a strong counterpoint to the prevailing precedent in cases involving the employee status of incarcerated workers under the Fair Labor Standards Act, which effectively categorizes them as slaves. Instead of waiting for the courts to recognize the employment status of incarcerated workers under more restrictive statutes, unions could recognize them as members and force the employer to litigate a community of interest dispute under the NLRA.
If courts find the interests of incarcerated workers too attenuated from “free” workers to recognize a unified bargaining unit, there are several strategies that unions can use to bridge that gap. For example, the Union of Southern Service Workers recently brought a lawsuit against Alabama Governor Kay Ivey alleging, among other things, that the structure and operation of the state’s prison labor scheme interfered with their organizing activities.
Such grievances can also be taken to the bargaining table. Instead of demanding, as unions have in the past, that their workplaces stop bringing in incarcerated workers, they can demand that incarcerated workers be brought up to similar wage and benefit structures. Bringing the working conditions of incarcerated laborers and traditional employees into concert would make arguments under the NLRA more likely to be successful. Finally, unions might also leverage existing relationships with incarcerated workers to strengthen the ties between the two groups. While unions often sponsor job-training programs targeted at parolees, they could expand these programs to work with incarcerated workers regardless of proximity to release. In so doing, unions can create more situations in which their members work alongside incarcerated workers, and advocate to make such workers compensated as equals.
Fighting Prisons and the Boss
For both incarcerated and non-incarcerated workers, united unions represent an important avenue to increase their bargaining power. Within the prison, the development of such unions would shift the locus of power away from the corporations who exploit incarcerated labor and their slave-driving correctional departments. As more incarcerated workers have access to union employment, the ability of the prison to force inmates into jobs with poor pay and conditions would become increasingly difficult, thus growing the bargaining power of incarcerated people regardless of their work status. As that power grows in relation to working conditions, so too would it grow in relation to issues of prison conditions and abuses in general.
For unions representing working people, ending mass incarceration is a natural path to growing in strength. A third of American adults, most of them working people, have a criminal record. Moreover, the carceral system has a documented chilling effect on the labor movement because of the economic and social precarity in which it places those who are released. As a whole, America’s correctional institutions target poor people and make them even poorer. As Ruth Wilson Gilmore has written about extensively, prisons are often expanded as a response to major corporations moving jobs overseas, in order to “fix” the socioeconomic conditions wrought by global capitalism. Thus, fighting the maintenance and expansion of mass incarceration means fighting further indirect government subsidies to major corporations as they destroy union jobs.
Many unions already support reform of the criminal legal system, but embracing incarcerated workers as members represents an important step in placing unions at the forefront of those demanding decarceration. Unions could fight for their members on issues of prison conditions and parole policies, infusing additional energy and resources on an underdiscussed front of class warfare. It would prioritize the most exploited workforce in America today, and represent the highest form of labor solidarity against the governments and corporations who wish to sentence working people to social and economic death.
