“You May Be Down and Out, But You Ain’t Beaten”: Collective Bargaining for Incarcerated Workers

Keith Armstrong | May 14, 2020

The Supreme Court’s sweeping 1977 decision in Jones v. North Carolina Prisoners’ Labor Union determined that a state’s reasonable interest in maintaining security in a correctional facility outweighed prisoners’ freedom of association in seeking to unionize. This decision had a chilling effect on a burgeoning prisoners’ union movement which had risen to prominence over the course of the 1970s. Since Jones, prison labor has increased and changed form: the Prison Industry Enhancement (PIE) Act of 1979 authorized private firms to sell prisoner-made goods on the open market. At the same time, prisoners continue to work in more traditional jobs within prisons, such as cooking, cleaning, and manufacturing license plates. After Jones, prisoners have not been able to assert a constitutional right to associate, but they have continued to struggle for labor protections. These efforts have mostly taken the form of unauthorized prison strikes. The largest recent strike involved inmates in over seventeen states. Issues involving prison labor have moved to the forefront of conversations on criminal justice reform. Recently, scholars have examined the ways in which unions of incarcerated workers might make use of federal labor law, including the National Labor Relations Act (NLRA) to gain recognition as collective bargaining units. However, even if these efforts succeed, their impacts would be limited to incarcerated workers involved in the PIE program or to those working in private industries in private prisons. The vast majority of incarcerated workers who do not work in private industries would be excluded. As a complementary approach, and in order to expand labor protections to those incarcerated workers who would not be covered by the NLRA, incarcerated workers may also wish to look to state labor law for protections. This Comment surveys state public employee collective bargaining statutes. Some states categorically exclude prisoners from their definition of “public employee” or do not permit any association of public employees to engage in collective bargaining. However, other states have broad definitions that could conceivably include prisoners. Advocates of incarcerated worker union organizing may wish to focus their efforts on these states. If incarcerated worker unions are able to organize under state or federal labor law, then they may eventually be able to demonstrate that such associations are beneficial rather than detrimental to maintaining order in prisons, which could help chip away at the overbroad holding in Jones.