Compelled Consent: Wolff Packing and the Constitutionality of Compulsory Arbitration
Nearly a century ago, the U.S. Supreme Court struck down a Kansas compulsory arbitration scheme that fixed wages and hours as to a single employer (but not its competitors), and barred strikes and other forms of concerted action by its workers. Charles Wolff Packing Co. v. Kansas Court of Industrial Relations recognized the right to strike as the constitutional bookend to the Fourteenth Amendment’s protections against deprivations of property and liberty of contract without due process of law. Though its holding has never been reversed, some modern-day proponents of private sector compulsory arbitration argue that the New Deal Court “completely repudiated” Wolff in 1937, when it administered its coup de grâce to “economic due process” in West Coast Hotel Co. v. Parrish and upheld the National Labor Relations Act (“NLRA”). In November 2017, the California Supreme Court endorsed this view in Gerawan Farming, Inc. v. Agricultural Labor Relations Board, when it rejected a challenge to a forced contracting scheme similar to the one invalidated in Wolff. This epitaph cannot be reconciled with the history of the Kansas Act or Wolff’s significance in the evolution of the doctrinal shifts leading to the New Deal Court’s validation of the NLRA. The Labor Board cases reflected, rather than repudiated, one of Wolff’s central teachings – workers cannot deal on terms of equality with their employer without the right to engage in collective action. The proceedings before the Court of Industrial Relations, internal documents of the Taft Court, and the national debate precipitated by the Kansas Act over free speech, free labor, and free markets, explain why the unanimous decision in Wolff cannot be dismissed as a “Lochner era” relic. After all, the Kansas Act’s compulsory arbitration scheme could not function unless associational rights, property, and liberty due process protections were abridged. Thus, modern-day experiments analogous to the “drastic and all-inclusive” joint compulsion imposed by the Kansas Act suffer from the same, fatal constitutional difficulties. 1
