dissenting.
Even assuming the union has asserted a sufficiently tangible and causally connected injury to itself, see Larson v. Valente, 456 U.S. 228, 239, 102 S.Ct. 1673, 1680, 72 L.Ed.2d 33 (1982), or to its members, see UAW v. Brock, — U.S. -, -, 106 S.Ct. 2523, 2527, 91 L.Ed.2d 228 (1986), to establish standing, and assuming further that a live case or controversy is presented by the union’s action, see Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122-27, 94 S.Ct. 1694, 1698-1700, 40 L.Ed.2d 1 (1974), I cannot agree that South Dakota’s application of its unemployment statute so undermines an employee’s right to belong to a union that South Dakota should be permanently enjoined from “paying unemployment compensation benefits to non-union members left unemployed by a strike while denying those benefits to similarly incapacitated union members,” ante at 410.
The broad sweep of the court’s decision fails to recognize that this case does not represent the typical preemption situation in which state law, unanchored by federal policy or statute, can be invalidated solely on the strength of federal labor law policy. Rather, this case implicates not only federal policy in the area of labor law but also implicates important federal policy in the area of unemployment compensation.
Since 1937, when the constitutionality of Title IX of the Social Security Act was upheld by the Supreme Court, Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937), the federal government, in partnership with the states, has worked to ease the financial burdens borne by the unemployed worker. As part of that cooperative endeavor, South Dakota has enacted a worker unemployment compensation program that fully complies with the requirements of federal unemployment compensation law. See 42 U.S.C. § 503.
Section 61-6-19 is a part of South Dakota’s unemployment compensation program. Rather than assert that section 61-6-19 or the state’s interpretation of it is inconsistent either with the requirements of the Social Security Act or South Dakota state law, the union contends the state’s interpretation of section 61-6-19 interferes with rights guaranteed by section 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 157.
Section 7 of the NLRA, like the Social Security Act and the state programs enacted under it, is intended to advance important federal policies and in part guarantees employees the right to belong to a union. Id. Accepting for the sake of argument that South Dakota’s actions had any impact on an employee’s right to belong to a union, a proposition for which there is little record support, I believe that in the area of unemployment compensation this exercise of state power is a permissible one.
Except to the extent Congress has explicitly required or explicitly forbidden states from adopting a particular condition of unemployment compensation, “[t]he voluminous history of the Social Security Act ma[kes] it abundantly clear that Congress intended the several States to have broad freedom” to develop and implement those unemployment compensation policies best suited to the needs of each particular state. See New York Telephone Co. v. New York State Department of Labor, 440 U.S. 519, 536-37, 99 S.Ct. 1328, 1339, 59 L.Ed.2d 553 *411(1979) (plurality opinion); Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 488-89, 97 S.Ct. 1898, 1908, 52 L.Ed.2d 513 (1977). Further, because the resulting diversity in state unemployment compensation programs is congressionally sanctioned, state policies not inconsistent with the Social Security Act, yet arguably interfering with rights protected by the NLRA, will not be preempted if the legislative history accompanying the Social Security Act as well as the legislative history accompanying the NLRA indicate that “Congress has decided to tolerate [this] interference.” New York Telephone Co., 440 U.S. at 549, 99 S.Ct. at 1345 (Blackmun, J., concurring); see also Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 2395, 85 L.Ed.2d 728 (1985). At bottom, the fact that employees have exercised rights protected by the NLRA does not in and of itself necessarily deprive the state of its congressionally sanctioned authority to “decide whether or not to pay unemployment benefits.” Baker v. General Motors Corp. and Michigan Employment Security Commission, — U.S.-, -, 106 S.Ct. 3129, 3137, 92 L.Ed.2d 504 (1986).
Here, the union does not assert that section 61-6-19 or the state’s interpretation of it is in any way inconsistent with federal unemployment compensation policies. Further, the NLRA and its legislative history provide no support for the union’s contention that the state’s actions, while consistent with the requirements of the Social Security Act, have nevertheless been determined by Congress to constitute an impermissible interference with an employee’s right to belong to a union.
Additionally, although the court focuses largely on the employee’s right to belong to a union, the NLRA, in authorizing right-to-work laws such as South Dakota’s, see 29 U.S.C. §§ 157, 164(b); see also S.D. Const, art. VI, § 2; S.D. Codified Laws Ann. §§ 60-8-3 to 60-8-6, obviously recognized that labor disputes would occur involving both union and non-union employees. See New York Telephone Co., 440 U.S. at 544, 99 S.Ct. at 1343. As a result, states will be required to implement their unemployment compensation programs in situations such as this in which employees affected by a labor dispute have exercised both the right to belong to a union and the right not to belong to a union. See 29 U.S.C. § 157. Yet, while labor disputes like this one are clearly anticipated by the NLRA, the NLRA provides no indication that one of these rights is to be preferred over the other. More important, the NLRA gives no guidance to the states with respect to how the right to belong to a union and the right not to belong to a union are to be balanced with the myriad of other important federal and state policies underlying a state’s unemployment compensation program.
Here, the court, without congressional guidance, has seen fit to reject the balance drawn by South Dakota in favor of the court’s own position. The court has done this even though there is no suggestion that South Dakota’s actions are inconsistent with either federal or state unemployment compensation policies.
In the absence of any congressional direction and in light of the state’s strong, federally recognized interest in administering its own unemployment compensation program, I believe South Dakota should be allowed to administer its unemployment program as it has in this case. In any event, regardless of how South Dakota drew the balance in this case, the State’s “power to fashion its own policy concerning the payment of unemployment compensation [should] not * * * be denied on the basis of speculation about the unexpressed intent of Congress.” New York Telephone Co., 440 U.S. at 545, 99 S.Ct. at 1343. At bottom, to the extent that South Dakota’s actions may in some way interfere with an employee’s right to belong to a union, I conclude this interference is of a type Congress has decided to tolerate.
I would reverse the decision of the district court and respectfully dissent from the decision of this court.