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Prison Labor Unions?

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Inmates from a La Fourche parish jail on a work release program fill giant sandbags in Port Fourchon, Louisiana May 11, 2010. U.S. Army National Guard troops were dropping the sandbags using helicopters on nearby breaks in beaches to protect marshes from the BP oil spill offshore.   REUTERS/Rick Wilking (UNITED STATES - Tags: ENVIRONMENT DISASTER)
Inmates from a La Fourche parish jail on a work release program fill giant sandbags in Port Fourchon, Louisiana May 11, 2010. U.S. Army National Guard troops were dropping the sandbags using helicopters on nearby breaks in beaches to protect marshes from the BP oil spill offshore. REUTERS/Rick Wilking (UNITED STATES – Tags: ENVIRONMENT DISASTER)

While I remain as skeptical of whatever the modern Industrial Workers of the World is as ever, this is certainly interesting. Should prison laborers organize into unions? Should public sector unions make this a priority?

This spring, the IWW and allied community groups organized prison labor strikes of thousands of incarcerated workers in Alabama, Wisconsin, Texas, Mississippi, and Ohio—all demanding the right to form a union. The IWW Incarcerated Workers Organizing Committee has called for a nationwide prison strike on September 9th to mark the 45th anniversary of the Attica prison uprising and claims it has the support of thousands of prisoners throughout the U.S.

“It could really shake things up,” IWW organizer Jimi Del Duca told me. “A lot of working class people are afraid to organize because they have a few crumbs to lose. [Many] prisoners have nothing to lose and that gives them courage. They have nothing to lose and everything to gain.”

However, the barriers to organizing prisoners are high. Communication between prisons is difficult, as most prisoners are not allowed access to email. Even within prisons, inmates are limited in their ability to meet face-to-face. While they are allowed to assemble routinely for Alcoholics Anonymous meetings or religious activities, the 1977 Supreme Court case Jones v. North Carolina Labor Prisoners’ Uniondenied them their first amendment right to assemble if a warden feels a gathering is a threat to prison security. As a result, wardens block most prisoners’ union meetings.

However, Elon University Labor Law Professor Eric Fink says that prisoners may have another option. The right of prisoners to form a union has never been challenged in a National Labor Relations Board (NLRB) union certification case, and Fink believes that prisoners could use the NLRB process to push for the right to meet regularly and form collective bargaining units. He argues that prison workers—employed by private contractors in 37 states—should have the same right to form a union as other workers employed by those contractors. According to Fink, if the IWW were to bring a case before the NLRB, then the Board could declare that prisoners are employees who are eligible to join a union.

“I think the Board is capable of saying there are issues that [incarcerated people] have the right to bargain for—such as hours and wages—as any other worker would have the right to do,” said Fink.

As for prison workers who are employed directly by the state, Fink feels they could organize more easily. Under federal labor law, each individual state has a Public Employee Relations Board (PERB) which governs how labor law is applied in the jurisdiction. Often, the leadership of the PERB is heavily influenced by local labor leadership. So, if a public sector union such as AFSCME were to endorse the right of prisoners to form unions, state-level PERBs might be inclined to extend that right.

However, there is a catch: many public sector unions also represent guards, who may be lukewarm to the idea of prisoners forming unions.

“The problem is that insofar as a number of public sector unions have prison guards as members—and sometimes in large numbers—it has an impact on the ability to have that discussion,” said Bill Fletcher, the former education director of the AFL-CIO.

Heather Ann Thompson, Professor of History in the African American Studies at the University of Michigan, believes that guards should see prisoners’ unions as a win for them, too.

“These are workplaces that are deeply unsafe and barbaric,” said Thompson. She believes that giving workers a collective voice may reduce gang violence, because it will give prisoners a structure through which they can advocate for themselves. Unions would also provide guards and prisoners with the means to push together for a safer prison environment.

A few thoughts:

1) Since we as a society have determined to make prisoners work for substandard wages, a situation corporations and states are very happy to take advantage of, we also have to think of them as workers. They are legitimate workers. They are also unfree workers. They make wages that undermine non-prison workers. They work in terrible conditions. They work directly under the supervision of people who can be violent toward them. These are problems.

2) All workers should have the right to a union. That very much includes prison workers.

3) Suits challenging the status of prison labor would be beneficial. This is a project someone should take on.

4) Regardless of the IWW name and history, anyone working to organize workers is a good thing. The Jimmy John’s actions of a decade ago didn’t lead to much, but did help jumpstart the broader fast food workers movement of the present. If the established unions aren’t going to do this, anyone who wants to step into the breach is more than welcome.

5) The challenges here are gigantic, including that the prison guards are going to freak out about it.

6) Those challenges don’t mean it shouldn’t be tried. But this would require a lot of money, which only the established unions can provide, and the energy for a shot in the dark campaign that will anger other unionists, which these IWW activists are going to have to a far greater extent than unions that already represent guards.

So I don’t really know what the path forward looks like, but it’s a path that needs to be walked.

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  • Bruce Vail

    Yes, but…

    1) IWW does not have the infrastructure or finances to do an organizing campaign like this (but that doesn’t mean it is a bad idea).

    2) None of the traditional AFL-CIO or CtW unions has the stomach to endure the bad press and hard work that would come with launching any campaign of this nature. They have bigger fish to fry.

  • Anon21

    I agree that it should happen. I don’t know much about NLRB, but I’d be surprised if they touched this with a ten-foot pole–wardens are going to be telling them that this is a major security risk, and I don’t know that labor lawyers will have the expertise or stomach to push back.

    I also wonder to what extent a prison workers’ union could successfully advocate for improvement in conditions of incarceration beyond those directly connected with prison labor. If a group of oil platform workers organized, I would assume that they could collectively bargain about their living accommodations and food on the oil platform, since part of the job is to live there for extended periods of time. Could a union of incarcerated workers collectively bargain for air conditioning on housing tiers, or additional time out of cell for prisoners temporarily placed in solitary confinement? Unlike the oil platform workers, the reason they’re in this place is not because of their jobs; rather, the jobs and housing both stem from a criminal conviction.

  • They are legitimate workers. They are also unfree workers.

    Some might liken this to, you know, forced/slave labor.

    This is especially troublesome when they are working for private companies, which, as we all know, could give two shits about human rights.

    • Anon21

      This is especially troublesome when they are working for private companies, which, as we all know, could give two shits about human rights.

      I mean, I guess. State prison bureaucracies also do not care about human rights.

    • delazeur

      Some might liken this to, you know, forced/slave labor.

      I would be curious to hear a thorough explanation of what is wrong with this, per se. I am entirely opposed to letting prisons rent out inmates to private companies and I believe prison labor should be held to the same safety standards as non-prison labor, but what’s wrong with forcing inmates to make license plates? Our efforts should be focused on making the forced labor humane, not on questioning the forced labor in the first place. I am also unsure (genuinely unsure, not concern trolling) whether labor should be our first priority in making prisons more humane.

      • njorl

        We should never create an economic incentive to imprison people. This has 2 sides:
        1-The state should never make more from selling a convict’s labor than the costs incurred for incarceration.
        2-No private entity should ever find it more economical to use forced labor than free labor. If convict labor is cheaper, it creates an incentive for kickbacks, which creates an incentive to unnecessarily incarcerate.

        • Aaron Morrow

          I came to say that this was a really smart post, and I stayed to say that this was a really smart comment.

          Thanks.

        • delazeur

          Agreed, that’s why I am entirely opposed to letting prisons rent out their inmates.

          Still, as far as I know most prisons also use forced inmate labor in ways that I think are reasonable: at least doing prison upkeep, if not also doing some useful work for the government. Where I see the latter kind of work becoming questionable is that presumably the alternative is to pay unincarcerated workers a fair wage (which I would prefer), but I am not sure that inmates do enough of this sort of labor for the prisons to fully recoup their costs.

      • I believe that njorl has captured the fundamentals of what my response would be, but the gist is that this is something that is ripe for abuse. Nazi Germany’s utilization of forced Jewish labor would be an extreme case, but what’s to stop some backwards parish from doing the same thing? Even in NY, we have issues with abuse of solitary confinement. If private companies have economic incentive to work someone to near death, and no-one is checking to make sure this isn’t happening, then you can bet that people will be worked to near death.

        If a public or private company wants to put prisoners to work, then they should have to follow the same workplace guidelines as putting non-prisoners to work: fair pay, fair work week, safe working conditions, and so on. You can deduct fair room/board from their pay, and if they still net a positive, it can go into an account for when they get out (assuming they do so), their families, or whatever.

        A lot of this has roots, in my opinion, on what, philosophically, the end game of imprisonment is supposed to mean. There used to be the concept of rehabilitation and transforming prisoners into a productive members of society before they were released. Now it’s just maximizing the profit margin of the prison industrial complex.

  • njorl

    This seems like something much better addressed from a human rights angle than labor rights. It’s more a matter of how we treat those who are helpless before the power of the state than how we officiate the rules between those negotiating the exchange of labor for cash.

    Public sector workers aren’t negotiating with people who directly control their food, water and shelter – not yet anyway. If a bus driver doesn’t like the contract his union negotiates with the city, he can quit without fear of repurcussions.

    • lunaticllama

      Not to overly focus on semantics, but everyone I’ve met working for human rights advocacy groups absolutely believe that labor rights are an integral part of human rights. For example, the International Covenant on Economic, Social and Cultural Rights recognized and protects the right to work and to just and favorable working conditions in Article 6 and 7, and the right to join trade unions and take collective labor action in Article 8.

      • I would say that human rights are the minimum standard for labor rights. The reason I say this is that human rights should be the floor upon which all other rights are built.

  • Robespierre

    In Italy, I’m afraid prison unions would come pre-organised by organised crime. Then again, we don’t have the US system of wage bargaining, and those prisoners who work (outside of prison) are covered by the national contract, like anybody else doing the same job.

    Needless to say, all this would be far easier if fewer people viewed criminals as enemies who deserve to suffer.

    • delazeur

      I hope he Tebows on stage!

    • dmsilev

      If he holds up a bottle of Trump Vodka during his speech, that will make LGM Bingo in one go.

  • i8kraft

    This is a great post and something I hadn’t considered at any length. Thanks.

  • JR in WV

    Speaking of guards being sadistic…

    A friend who used to do yard work for us (now he’s a well-paid maintenance employee keeping coolers running for a chain of convenience markets) once got busted for a trivial amount of pot. He got the choice of a fine, some jail time, or 90 days of “community service” on the no-chain gang. Picking up litter on the roadsides, with a semi-law-enforcement guy minding the “kinda prisoners”.

    Friend’s biggest complaint was that the “guard” was compelled to throw everything on the ground in front of a favorite “convict”. Cigarette butts, chewing gum wrappers, tissues, you name it, pitch it on the ground and watch “his convict” pick it up.

    If neighborhood litter patrol could be made that ugly, I really hate to think of real convicts with real armed guards doing real chain gang labor~!!

    And the rental of prison labor is slavery, period.

    In the Deep South that was the first thing they thought of after “Reconstruction” ended. Make everything illegal, convict all the black men, and put them to work at gunpoint on the plantations. It worked out just great for the plantation owner class~!! Not so much for the “former” slaves…

  • Anon21

    In the Deep South that was the first thing they thought of after “Reconstruction” ended. Make everything illegal, convict all the black men, and put them to work at gunpoint on the plantations. It worked out just great for the plantation owner class~!! Not so much for the “former” slaves…

    Yup. I’ve heard good things about the book “Slavery By Another Name” on the subject of convict leasing.

  • ggrzw72

    As for prison workers who are employed directly by the state, Fink feels they could organize more easily. Under federal labor law, each individual state has a Public Employee Relations Board (PERB) which governs how labor law is applied in the jurisdiction.

    This is flat out wrong. Several states don’t even allow public-sector collective bargaining.

    • Bruce Vail

      Yes, under federal labor each individual state has the right to have a PERB or some similar agency. Not all states have them.

      I don’t have a 50-state breakdown, but I know North Carolina and Virginia do not allow any public employee collective bargaining of any kind.

      • LuckyJimJD

        Yeah, that was unfortunately garbled in the article.

        Interestingly, the only two state labor boards (NY & Michigan) to directly consider the issue (back in the 70s) rejected representation petitions by inmate workers on the ground that they were not statutory employees.

        The NLRB has repeatedly held that inmates on work release may be included in bargaining units along with other employees. But they’ve never considered the status of inmates working for private employers inside prison.

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