Columbia University and Incarcerated Worker Labor Unions under the National Labor Relations Act
Authors: Goad Kara 
Published: July 2018

103 Cornell L. Rev. 177 (2017)On September 9, 2016, an estimated 24,000 inmates in at least twenty-nine prisons across the United States refused to work as part of a coordinated labor strike. Though the exact number of participants is difficult to confirm, a member of the committee that helped organize the strike states that this was the largest prison strike in U.S. history. An inmate in a South Carolina prison estimated that 350 of the 1,500 inmates there participated in the strike, refusing to appear for work assignments in an on-site, privately owned furniture factory or as the prison’s landscapers, janitors, and cooks. A Michigan Department of Corrections spokesperson said that inmates at one Michigan facility did not report for kitchen work, forcing correctional officers to provide food. Four hundred inmates at that facility also marched peacefully in the yard before the prison went on lockdown. In Alabama, some corrections officers joined in the strike to protest overcrowded and understaffed prisons. The Incarcerated Workers Organizing Committee (“IWOC”), part of the Industrial Workers of the World labor union, organized the strike through mailings and conference calls to inmates and their families and through partnerships with lawyers and activists. Through the strike, the inmates and organizers aimed to call attention to a range of grievances, including unfair pay for inmate work and inhumane prison conditions.Casting light on and adding gravity to these issues is the IWOC’s rallying call for the strike: “This is a Call to Action Against Slavery in America.” The IWOC is one of many voices in the growing discussion of prison labor as a form of modern day slavery in the United States. The Louisiana State Penitentiary, also known as Angola, provides a stark example of how inmate labor gives rise to these discussions. Located on what was once a slave plantation, Angola is now home to a program under which inmates work in the same plantation fields for as little as two cents per hour. The prison can force the inmates to work after a doctor clears them and is not legally required to compensate them. Section 1 of the Thirteenth Amendment authorizes this program when it provides that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States . . . .” Programs like those at Angola also exist because legislatures and courts have prevented traditional labor and employment law rights and protections from applying to incarcerated workers. This Note seeks to demonstrate that labor law can provide one avenue for remedying some of the grievances of incarcerated workers. In particular, this Note argues that the National Labor Relations Board’s (“NLRB” or “the Board”) August 2016 decision regarding the right of graduate student assistants to unionize in Columbia University creates a particularly relevant opening for arguing that incarcerated workers are also able to unionize under the National Labor Relations Act (“NLRA” or “the Act”). Part I of this Note provides background information on the prison system in the United States and the ways in which inmate labor occurs within it, as well as on the NLRA and the NLRB. Part II lays the groundwork for the application of Columbia University to the situation of incarcerated workers by providing an overview of decisions regarding the status of incarcerated workers under labor and employment statutes before Columbia University and of the Board’s decision in Columbia University. Part III contrasts the Board’s reasoning in Columbia University with these earlier decisions and argues that the Board has set itself up to disagree with their reasoning and in fact has interpreted the Act such that incarcerated workers should be protected under it. Part III also raises and addresses a number of potential obstacles to incarcerated worker unionization and contends that none of these obstacles must necessarily prevent their unionization. Though Part III also reveals that the number of incarcerated workers who would currently fall under the Act’s protection is somewhat limited, this Note argues that, in light of the ways in which prison labor is a form of modern-day slavery, the Board, the courts, and the public should seize this opportunity to establish a foundation for incarcerated worker unionization.