Lodge 76, International Ass'n of MacHinists & Aerospace Workers v. Wisconsin Employment Relations Commission

Mr. Justice Powell,

with whom The Chief Justice joins, concurring.

The Court correctly identifies the critical inquiry with respect to pre-emption as whether “the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act’s processes.” Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 380 (1969). See ante, at 147-148.

This is equally true whether the self-help activities *156 are those of the employer or the Union. I agree with the Court that the Wisconsin law, as applied in this case, is pre-empted since it directly curtails the self-help capability of the Union and its members, resulting in a significant shift in the balance of free economic bargaining power struck by Congress. I write to make clear my understanding that the Court’s opinion does not, however, preclude the States from enforcing, in the context of a labor dispute, “neutral” state statutes or rules of decision: state laws that are not directed toward altering the bargaining positions of employers or unions but which may have an incidental effect on relative bargaining strength. Except where Congress has specifically provided otherwise, the States generally should remain free to enforce, for example, their law of torts or of contracts, and other laws reflecting neutral public policy.* See Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337, 1355-1356 (1972).

With this understanding, I join the opinion of the Court.

State laws should not be regarded as neutral if they reflect an accommodation of the special interests of employers, unions, or the public in areas such as employee self-organization, labor disputes, or collective bargaining.