Columnist Razvan Sibii: Workers should have labor unions — even in prison

Published: 9/20/2021 2:22:52 PM

Two years ago, I started this monthly column dedicated to immigration and incarceration by writing about the Amherst-Pelham Regional School Committee’s decision to use the labor of incarcerated people to refurbish the chairs in the school auditoriums. The outrage that decision was met with was justified primarily by the fact that incarcerated workers are paid far below the minimum wage for their labor.

Today, I’m exploring a related problem: the inability of these underpaid workers to unionize and bargain with prison administrations to improve their working conditions.

The argument is simple: when a bunch of workers create a product or provide a service that brings in money to the owners, those workers should have the right to band together to protect themselves from exploitation and abuse.

The counter-argument is simple, too: “But wait — they’re in prison, right? You’re not supposed to be free in prison, are you?” No, you’re not, but you’re not supposed to lose all your rights either. Various courts have made that pretty clear in the past, through decisions that asserted at least a partial right for incarcerated people to speak freely, to exercise their religion, and to petition the government for redress of grievances.

True, the last time the Supreme Court took on the question of prison unionizing (Jones v. North Carolina Prisoners’ Labor Union, 1977), it decided that incarcerated people do not have an inalienable right to associate. But until that decision, plenty of courts, state governments and state labor boards had found that denying incarcerated workers any say whatsoever in their work arrangements was not a necessary element of punishment. (That included Massachusetts, where in the early 1970s the Department of Corrections recognized the Walpole Prison chapter of the National Prison Reform Association as a bargaining unit). And nowadays, as the notion of criminal justice reform enjoys unprecedented popularity, it might be time again to ask, “Why wouldn’t you allow incarcerated workers to unionize?”

I posed that question to Erik Fink, a law professor at Elon University in North Carolina and the author of an influential study on prison unions recently published in the Idaho Law Review. He said that these days the prison industry’s lawyers do not even bother to argue that collective bargaining would somehow compromise the punitive goals of incarceration. Rather, they generally argue that unions would constitute a security risk.

“But they never really explain what they mean by that,” Fink said. “They don’t put forward any evidence. They get to court, and the prison warden or the commissioner of corrections says, ‘In my opinion, this would be a potential threat to security.’ And the court says, ‘Oh, OK!’ And sometimes the court is pretty explicit in saying, ‘This person is charged under state or federal law with being responsible for the security and order of the prison. And we, as a court, are not going to second-guess their judgment.’”

When all you have is a hammer, everything around you looks like a nail. “People who run prisons believe in prisons. When they say, ‘Security and order!’, that’s an ideological statement. It’s a strong primary value for them. [Unionizing] is just bargaining. It’s not, you have to do whatever the union says. What is it that you would get in bargaining that would somehow cause a great problem? You’re not going to bargain that the members be allowed to just walk out of prison!” Fisk said.

It would be easier for the incarcerated workers to make their case for collective bargaining if the outside mainstream labor unions took up their cause like they used to in the early 1900s (when the American Federation of Labor worked with the Sing Sing warden to teach various trades to the imprisoned) or in the 1970s (when various “prisoners’ unions” mushroomed, with the help of outside outfits, in states such as California, New York, Michigan, Massachusetts and Ohio). But, aside from the maverick Industrial Workers of the World, the contemporary big unions are not interested.

Fisk has two explanations for that. One has to do with the composition of these unions’ membership. “Before I was a professor, I worked at a law firm that represented a lot of unions. One of our biggest clients was a public employee union that represented, among other things, prison guards. In many states, they’re organized and they tend to have a lot of members. So there’s tension there. You may not have a receptive audience when you say, ‘Oh, we should also organize the inmates!’” he said.

The second explanation has to do with the labor unions’ obvious decline in strength and numbers. “It’s almost like PTSD,” Fisk said. “You go through 100 years of a labor movement that was more openly radical and even revolutionary. And you get shot and arrested by the National Guard and the cops, and you get fired and blacklisted by Senate committees. At some point you might decide, ‘Well, we just need to survive. Let’s keep our heads down. We’ll bargain over wages and health care.’ And then comes the shock of the ’70s and the ushering in of neoliberalism, and all the jobs suddenly disappear. And they’re scrambling to stay alive. And then you come and say, ‘There’s a bunch of inmates in Alabama who want to organize’... It’s unfortunate, but I suppose it’s understandable that, as an organization, [the union] has limited resources and just can’t do that right now.”

Negotiation between the administration and the incarcerated men and women is a reality in every prison. The imprisoned cannot leave and management cannot fire them. They must work together, and, most times, they do, whether the unions have an official presence behind bars or not. But there’s no good reason why union-friendly administrations should continue to deny incarcerated workers the right to sit at the table and argue, in one voice, for better work conditions.

Razvan Sibii is a senior lecturer of Journalism at UMass Amherst. He writes a monthly column on immigration and incarceration. He can be contacted at razvan@umass.edu.



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