

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-1249

                      CHAULK SERVICES, INC.,

                      Plaintiff - Appellant,

                                v.

                 MASSACHUSETTS COMMISSION AGAINST
                     DISCRIMINATION, ET AL.,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Reginald C. Lindsay, U.S. District Judge]                                                                 

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                      Lynch, Circuit Judge,                                                    

                  and Casellas,* District Judge.                                                         

                                           

     Arthur P. Menard, with whom Paul J. Murphy and Menard Murphy                                                                           
&amp; Walsh were on brief for appellant.                 
     Macy  Lee,  Assistant  Attorney  General,  with  whom  Scott                                                                           
Harshbarger, Attorney General of  Massachusetts, was on brief for                     
appellee   Massachusetts   Commission   Against   Discrimination;
Katherine    McClure    on    brief    for    appellees   Petrina                              
Doulamis/Sullivan  and  International   Association  of  EMTs   &amp;
Paramedics, NAGE and AFL-CIO.

                                           

                        November 27, 1995
                                                  

*  Of the District of Puerto Rico, sitting by designation.

                                           

                               -2-

          CASELLAS, District Judge.   Plaintiff-appellant  Chaulk                    CASELLAS, District Judge.                                            

Services,  Inc. ("Chaulk")  originally  brought  this action  for

declaratory judgment, preliminary and permanent injunctive relief

against  the  Massachusetts  Commission   Against  Discrimination

("MCAD")("the     Commission"),     Petrina     Doulamis/Sullivan

("Doulamis")  and  the   International  Association  of   EMTs  &amp;

Paramedics, NAGE, AFL-CIO ("the  Union"), to prevent  defendants-

appellees from  proceeding with  the case of  Doulamis v.  Chaulk                                                                           

Services, Inc., 93-BEM-2145, then pending before the MCAD, on the                        

basis that the action was preempted by federal law, particularly,

the National Labor Relations Act ("NLRA")("the Act"), 29 U.S.C.  

151  et seq.  The district court abstained from deciding Chaulk's                     

preemption  claim, citing Younger v.  Harris, 401 U.S. 37 (1971),                                                      

Ohio Civil  Rights Commission v. Dayton  Christian Schools, Inc.,                                                                          

477 U.S.  619 (1986) and  Brotherhood of Locomotive  Engineers v.                                                                        

MCAD,  695  F.  Supp.  1321  (D. Mass.  1988),  and  consequently              

dismissed Chaulk's complaint.   We vacate the judgment  below and

remand the case to the district court.

                    I.  STATEMENT OF THE CASE                              I.  STATEMENT OF THE CASE                                                       

          A.  Facts                    A.  Facts

          In the middle of 1993, the International Association of

EMTs and  Paramedics, NAGE,  AFL-CIO, began a  union organization

campaign  at Chaulk.   Doulamis became  involved in  the campaign

sometime during the fall  of 1993, when she  and Eric Burgess,  a

male Chaulk employee, wrote a letter to the president of Chaulk's

parent  company  calling for  the organization  of  a union.   On

                               -2-

November  10,  1993,  Chaulk's  CEO Nicholas  O'Neil  and  Joseph

Gilmore, vice-president,  as part  of their own  campaign against

the union organization effort, met with Doulamis in an attempt to

pressure  her  into  becoming  a non-union  advocate.    Doulamis

declined their invitation.

          As  a result  of this  meeting, the Union  filed unfair

labor practice charges  on November  29, 1993  with the  National

Labor Relations  Board ("NLRB") against Chaulk,  claiming that it

coerced  and intimidated  Doulamis, a  known union  organizer, by

questioning   her  regarding  union  activities  and  threatening

retaliation for those union activities,  in violation of the Act.

On December 6 and 9, 1993, the Union filed two additional charges

with  the NLRB, both of which alleged that Chaulk interfered with

Doulamis'  labor activity  rights and  discriminated  against her

because of her union organization efforts.1

          Thereafter, the NLRB issued  a complaint against Chaulk

alleging specific violations of     8(a)(1) and (3) of  the NLRA,

and  charging that  Chaulk  had interfered  with, restrained  and

coerced several employees, including Doulamis, in the exercise of

rights guaranteed by   7  of the Act.  With respect  to Doulamis,

the complaint alleged that  on November 29, 1993 Chaulk  issued a

                                                  

1   The  Union filed  several  additional unfair  labor  practice
charges against  Chaulk stemming  from  its alleged  interference
with  the protected rights of numerous other employees.  Here, we
refer  in  particular  only  to those  which,  according  to  the
parties, involve  charges  of unlawful  conduct directed  against
Doulamis.   Furthermore,  while  Doulamis  is not  named  as  the
aggrieved  employee in these charges, both parties agree that the
employee referred to therein is, in fact, Doulamis.

                               -3-

written warning and on December 7, 1993 issued a letter addressed

to Doulamis threatening  her with discipline if  she attended any

future 401(K) meetings  held by  Chaulk with its  employees.   In

addition, the complaint  charged that on December 2, 1993, Chaulk

suspended  the coauthor  of the  pro-union letter,  Eric Burgess.

According  to  the  complaint,  Chaulk engaged  in  this  conduct

because  it mistakenly  believed  that  Doulamis,  together  with

several  of  her  fellow  employees, had  engaged  in  misconduct

arising  out of union or other protected concerted activity.  See                                                                           

Complaint and  Notice of Hearing at   s 7-8.  It  is also alleged

that these  employees formed, joined  and assisted the  Union and

otherwise  engaged in  concerted  activities, and  that  Chaulk's

conduct was a deliberate attempt to discourage the employees from

engaging in  these activities,  in violation of  sections 8(a)(3)

and (1) of the Act.  See Complaint and Notice of Hearing at  s 7-                                  

10.

          A  full  and  comprehensive  settlement  agreement  was

reached between Chaulk and the NLRB in March 1995 regarding these

claims.  As part of the settlement, Chaulk agreed to, inter alia,                                                                          

expunge  from its  files any  reference to  the transfer  of Eric

Burgess;  the written  warnings  set forth  in the  complaints of

Doulamis, Richard Graham, Chris Adler, Gary Winitzer, Jim Taubert

and Jean Taubert; the suspensions  of Eric Burgess, Chris  Adler,

Jim Taubert,  Jean Taubert, Gary Winitzer,  Michael Cook, Kathryn

Edwards  and  James  McLaughlin;  and the  terminations  of  Fran

Wilkerson,  John  Borden and  McLaughlin.    In addition,  Chaulk

                               -4-

agreedto payout approximately$12,000in backpay tothese employees.

          Meanwhile,  on December  1, 1993,  after the  Union had

already  filed its first charge  with the NLRB,  Doulamis filed a

complaint with the MCAD  against Chaulk, claiming she had  been a

victim  of  unlawful  sex  discrimination.    Specifically,   she

complained of being harassed  about her union activity, allegedly

because of her gender, in  that the "males who are  also involved

[in the union activity] are not being harassed."

          On February 18, 1994, Chaulk moved to dismiss Doulamis'

complaint  at the MCAD for  lack of jurisdiction,  on the grounds

that it was preempted by federal law.  On May 13, 1994, the  MCAD

issued  an order  denying  the motion  to  dismiss and  retaining

jurisdiction over Doulamis' discrimination claims, reasoning that

it  did not have  to address the  merits of  the underlying labor

dispute   in  order   to  resolve   the  allegations   of  gender

discrimination.  The  Commission then  promptly issued  a set  of

interrogatories to Chaulk, requesting detailed  information about

all known union organizers, their  role in organizing efforts and

any  significant acts  of  union organizing  known to  appellant,

including   copies  of  any  communications  between  Chaulk  and

Doulamis relative to the union organization effort.

          B.  Proceedings Below                    B.  Proceedings Below

          The  present  action was  filed  in  the United  States

District Court for the  District of Massachusetts on December  8,

1994, seeking a  declaratory judgment  as well  as an  injunction

barring the  continued prosecution of  Doulamis' complaint before

                               -5-

the MCAD.   Chaulk  claimed  that the  Commission's assertion  of

state  authority   over  her   charge  directly   threatened  and

significantly  interfered with the jurisdiction of  the NLRB.  As

noted above, the  district court granted MCAD's motion to dismiss

on abstention grounds.   It did not decide the  preemption issue.

Chaulk now appeals the district court's judgment.

                          II.  ANALYSIS                                    II.  ANALYSIS                                                 

          A.Preemption                    A.Preemption

          Relying on the doctrine  of preemption first enunciated

in  San Diego  Building Trades  v. Garmon,  359 U.S.  236 (1959),                                                   

appellant argues  that the district  court erred in  allowing the

Commission's  motion  to  dismiss   on  the  grounds  of  Younger                                                                           

abstention and that  it should have decided the preemption issue.

Citing primarily to Bud Antle, Inc. v. Barbosa, 35 F.3d 1355 (9th                                                        

Cir. 1994), Chaulk asserts  that when it is clear  that the state

tribunal is acting  beyond the  lawful limits  of its  authority,

there is no  principle of  comity that is  served by  abstention.

Id. at  1356.   Accordingly,  it urges  us  to find  the  Younger                                                                           

abstention doctrine inapplicable to this case, address the merits

of its  preemption claim, and  declare that appellee's  charge of

sex discrimination  before the Commission is  indeed preempted by

federal law.

          We  begin by delineating  the present  scope of  the so

called  Garmon preemption  doctrine.   The Supreme Court  held in                        

Garmon that when an activity is arguably subject to   7 or   8 of                

the  National  Labor Relations  Act, the  states  as well  as the

                               -6-

federal courts must defer to the exclusive competence of the NLRB

if the danger of state interference with national labor policy is

to  be averted.  Id. at 245.   When Congress enacted the NLRA, it                             

enacted comprehensive  procedural rules  and created the  NLRB to

administer  this specially  designed  regulatory structure.   The

result was  a complex  and interrelated  scheme  of federal  law,

remedies and administration designed to achieve uniformity in our

national  labor  policy.   Garmon,  359  U.S.  at  242; New  York                                                                           

Telephone Co.  v. New  York  Dept. of  Labor, 440  U.S. 519,  527                                                      

(1979); Jones v. Truck Drivers Local Union No. 299, 838 F.2d 856,                                                            

872  (6th   Cir.  1988)(Merritt,  J.,  concurring   in  part  and

dissenting in part).

          In  order to  achieve the desired  uniformity, Congress

entrusted  the interpretation and  enforcement of  the NLRA  to a

centralized administrative agency, armed with its own procedures,

and  equipped  with  its  specialized  knowledge  and  cumulative

experience.   See Garmon, 359  U.S. at 242.   This administrative                                  

scheme  was  designed  to  avoid the  danger  of  conflicting  or

incompatible adjudications  such as would  inevitably result from

having  multiple forums, with their diverse procedures, entertain

claims  under the  NLRA.   Garner  v.  Teamsters, Chauffeurs  and                                                                           

Helpers Local Union  No. 776, 346 U.S.  485, 490-91 (1953).   The                                      

Garmon rule is therefore  intended to preclude state interference                

with the NLRB's interpretation  and enforcement of the integrated

scheme  of  regulation established  by  the NLRA.    Golden State                                                                           

Transit Corp. v. City of Los Angeles, 475 U.S. 608, 613 (1986).                                              

                               -7-

          Withal, the  Garmon rule  admits of some  exceptions to                                       

the NLRB's primary jurisdiction.  For instance, where the conduct

at issue is of only "peripheral concern" to federal labor policy,

the  states  are  not  precluded from  regulating  the  activity.

Garmon,  359 U.S.  at  243.    Similarly,  state  action  is  not                

preempted where  the  regulated  conduct  touches  interests  "so

deeply rooted in  local feeling and  responsibility that, in  the

absence  of  compelling  congressional  direction,  courts cannot

infer that Congress has deprived the states of the power to act."

Id.2            

          When  called  to  determine  whether  these  exceptions

apply, courts must balance the state's interest in  remedying the

effects of  the challenged conduct against  both the interference

with  the NLRB's ability  to adjudicate  the controversy  and the

risk that the state will approve conduct that the NLRA prohibits.

Belknap,  Inc. v.  Hale, 463  U.S. 491,  498-499 (1983);  NLRB v.                                                                        

State  of Ill. Dept.  of Emp. Sec.,  988 F.2d 735,  739 (7th Cir.                                            

1993).  In doing so, we intentionally focus on the conduct at the

                                                  

2    Courts  have recognized  a  third  exception  to the  Garmon                                                                           
doctrine  where  Congress  has   expressly  carved  out  such  an
exception to the NLRB's primary jurisdiction.  See  Tamburello v.                                                                        
Comm-Tract  Corporation, No.  95-1295, slip  op.  at 6  (1st Cir.                                 
October  2, 1995)  (citing Vaca  v. Sipes,  386 U.S.  171, 179-80                                                   
(1967);  Brennan v. Chestnut, 973 F.2d 644, 646 (8th Cir. 1992)).                                      
Congress  has  not  made  an  exception  to  the  NLRB's  primary
jurisdiction  for  claims  alleging  sex  discrimination  in  the
context of an unfair  labor practice.  See Jones v. Truck Drivers                                                                           
Local Union, 838 F.2d  at 861 (sexual discrimination is  a breach                     
of duty of  fair representation and  within scope of    8 of  the
NLRA); NLRB v.  Local 106,  520 F.2d 693  (6th Cir.  1975)(same).                                   
This  exception therefore  does not  apply to  the facts  in this
case.

                               -8-

root of  this controversy,  namely Chaulk's  alleged interference

with Doulamis'  union activities,  as opposed to  the descriptive

title of sex discrimination  given to her cause of  action before

the MCAD.  That  is because preemption is designed  to shield the

system  from  conflicting  regulation  of conduct.    "It  is the                                                           

conduct being regulated, not  the formal description of governing

legal   standards  that   is  the   proper  focus   of  concern."

Amalgamated Ass'n  of St., E.R.  &amp; M.  C. Emp. v.  Lockridge, 403                                                                      

U.S. 274, 292 (1971).  See also,  Garmon, 359 U.S. at 246 ("It is                                                  

not the label affixed to the cause of action under state law that

controls the determination of  the relationship between state and

federal jurisdiction").

          Doulamis'  complaint highlights  the risk that  a state

cause of action will touch on an area of primary federal concern.

She  complains  of  incidents  of  interference  with  her  union

activities  as a union organizer.  The very same conduct provides

the factual basis  for the unfair labor practice  charges brought

by the  Union on her  behalf, which were  eventually incorporated

into the complaint and notice of hearing issued by the NLRB.  Her

claims are fundamentally grounded in an assertion that the rights

which her  employer interfered  with involve her  union activity.

Where, as here,  the case involves conduct arguably prohibited by

   8 of the  Act, the NLRB  has broad authority  to determine the

appropriate  remedy  for wronged  employees.3    "In fact,  since
                                                  

3  MCAD presses the argument that gender-based  discrimination is
not  even within  the realm  of  prohibited activities  under the
NLRA.  According  to MCAD, the scope of prohibited discrimination

                               -9-

remedies  form   an  ingredient  of  any   integrated  scheme  of

regulation,  to allow the state to grant  a remedy here which has

been withheld  from  the  NLRB  only accentuates  the  danger  of

conflict."   Garmon,  359 U.S.  at 247;  Richardson v.  Kruchko &amp;                                                                           

Fries, 966 F.2d  153, 157 (4th Cir. 1992).   Board authority over               

claims  of interference  with union  activities is not  merely of

peripheral  concern to the Act.  Rather, the Board's authority to

remedy  such practices is central to its purpose.  See Tamburello                                                                           

v.  Comm-Tract Corporation, No. 95-1295,  slip op. at  9 n.5 (1st                                    

Cir. October 2, 1995).

          Moreover,  the fact that  the Union  clearly considered

Chaulk's conduct  an unfair labor  practice, and  that the  Board

entertained  such charges, only buttresses the Court's conclusion

that  said   conduct  is  not  only   "arguably",  but  obviously

prohibited  under section 8(a) of  the NLRA.   It also highlights

the   very  real   danger   of  interference   with  the   NLRB's

jurisdiction, as it was precisely the Board's timely intervention

which  in this  case led  to the  agreement through  which Chaulk

pledged, among  other things,  not  to engage  in the  challenged

conduct, or take similar actions to hinder its employees in their

union activities.

          Significantly, the Supreme Court has held that in cases
                                                  

under  the  Act  is  limited  to  discrimination  based  on union
activities or  membership.   Still, the  argument  has been  made
successfully that  sexual  discrimination constitutes  an  unfair
labor practice under   8 of the NLRA.  See Jones v. Truck Drivers                                                                           
Local Union, 838 F.2d  at 861 (sexual discrimination is  a breach                     
of  duty of fair  representation and within  scope of    8 of the
NLRA); NLRB v. Local 106, 520 F.2d 693 (6th Cir. 1975)(same).                                  

                               -10-

where the underlying conduct is arguably prohibited by the  NLRA,

application of the so-called  "local interests" exception hinges,

in the first  place, upon  the existence of  a significant  state

interest in protecting its  citizens from the challenged conduct.

In  second place, the controversy which could be presented to the

state court must  be different  from that which  could have  been

presented to the NLRB.  Sears, Roebuck &amp; Co. v.  San Diego County                                                                           

Dist.  Council of Carpenters, 436  U.S. 180, 196-97  (1978).  See                                                                           

also, Tamburello v. Comm-Tract Corporation, No. 95-1295, slip op.                                                    

at 14 (1st Cir. October 2, 1995).

          Under the  Sears  rationale, the  critical  inquiry  is                                    

whether the controversy presented to the state court is identical

to or different from  that which could have been presented to the

NLRB.4  Sears, 436  U.S. at 197.   The Court reasoned that it  is                       

only  in   the  former  situation  that  a  state's  exercise  of

jurisdiction necessarily involves a risk of interference with the

unfair  labor practice jurisdiction of the Board which the Garmon                                                                           
                                                  

4   We note that  Sears is not  entirely on point, as  it differs                                 
from the  instant case in at  least one fundamental respect.   In
that case, the  Court was  presented with a  situation where  the
party seeking relief  in the state  forum had no right  to invoke
the  Board's jurisdiction  and the  party that  had the  right to
invoke the Board's jurisdiction had failed  to do so.  The  Court
expressed concern that  in the circumstances of that  case, Sears
may not  have a  chance  for a  hearing on  its  claims if  state
jurisdiction  were  preempted  without  any  assurance  that  the
dispute might eventually be  brought before the NLRB.   The Court
reasoned  that preemption  was justified  only when  an aggrieved
party has a reasonable  opportunity either to invoke the  Board's
jurisdiction  himself or else to  induce his adversary  to do so.
Id.  at 201.  Here, of  course, there is no  such concern, as the            
Union  filed the unfair labor practice charges with the NLRB even
before Doulamis filed her gender discrimination claims before the
Commission.

                               -11-

doctrine was designed to avoid.  Id.  We assume arguendo that the                                                                  

Commonwealth  of  Massachusetts  has a  significant  interest  in

protecting  its  citizens  against  sex discrimination  in  their

employment.  Following  the guidelines set  forth by the  Supreme

Court  in Sears,  we  therefore examine  whether the  controversy                         

before the  state forum would  indeed be the  same as  that which

could be brought before the NLRB.  Id.                                               

          In  this regard,  it is  telling  that the  Union, upon

learning   of  Chaulk's   alleged  interference   with  Doulamis'

activities as  a union organizer, promptly filed  an unfair labor

practice charge on her behalf, claiming violations  of   8 of the

Act--thereby clearly  characterizing the controversy  as a  labor

dispute, subject  to the  NLRB's primary  jurisdiction.  For  its

part,  the   NLRB  received  the  Union's  allegations  regarding

Chaulk's  conduct--the same  conduct  that would  later form  the

basis  for  Doulamis'  discrimination  claim  before  the  MCAD--

investigated them, proceeded then to issue a Complaint and Notice

of  Hearing, and eventually settled the matter.  Plainly, this is

not  a  case  where the  NLRB  declined  to  exercise its  lawful

jurisdiction over a labor controversy, or where the NLRB's actual

exercise of jurisdiction remains a matter of speculation.  On the

contrary, the Board  in this case  moved aggressively to  acquire

such  jurisdiction  and bring  the matter  to  a full  and speedy

resolution.

          Furthermore,  even Doulamis'  own pleadings  before the

Commission  couch her claims in  terms of a  labor dispute within

                               -12-

the NLRB's primary jurisdiction.  Her complaint accuses Chaulk of

harassment "about  [her] union activities."   She also  claims to

have  been "intimidated by Mr. O'Neil  about involvement in union

activity" and  "accused of  distracting the other  employees with

union activity."   As noted  above, such  conduct on the  part of

Chaulk,  if adequately  established  through competent  evidence,

would  constitute  an  undue interference  with  Doulamis' rights

under   7 of the  NLRA and consequently a violation of    8(a)(1)

of  the Act.    The application  of  additional remedies  to  the

conduct  here at  issue only  invites conflict.   As  the Supreme

Court stated in Garmon, "[t]he obligation to pay compensation can                                

be,  indeed is  designed  to be,  a  potent method  of  governing

conduct and controlling policy."  Id. at 247.  See Sears, Roebuck                                                                           

&amp;  Co., 436 U.S. at  193-94 ("[T]he pertinent  inquiry is whether                

the two potentially conflicting statutes [are] brought to bear on

precisely the same conduct.")  (citations omitted).  As discussed

above,  Doulamis' claim of sex discrimination is founded upon the

identical facts  which provided  the basis  for the  unfair labor

practices   charge  brought   on   her  behalf   by  the   Union.

Accordingly,  under the  Garmon rationale,  her claim  before the                                         

Commission is expressly preempted.

          Moreover, as  pointed out by Chaulk,  the interrogatory

issued  by  the  MCAD in  the  course  of  the investigation  and

prosecution of Doulamis'  case belies the Commission's  assertion

that it need not delve into the labor  aspects of the controversy

in order to dispose of her gender discrimination claims.  Rather,

                               -13-

the  interrogatory  is further  proof  that issues  of  labor law

ordinarily   considered  to   be   within   the  NLRB's   primary

jurisdiction  are precisely the type of questions that lie at the

heart of this controversy.

          Finally, in order to  determine the merits of Doulamis'

claims of sex disrimination, the MCAD will have to decide whether

in  fact Doulamis was engaged in protected union activity, and if

so, whether she was engaged in the same type of union activity as

the other union  organizers.   Such a finding  requires that  the

MCAD  become embroiled  in a factual  and legal  determination of

what constitutes union activity, a  task which has been expressly

reserved to the jurisdiction  of the NLRB.  More  importantly, if

the  Commission  were allowed  to  entertain  Doulamis' claim  of

sexual discrimination, there is the  potential risk that it  will

incorrectly   apply  the   substantive   rules  governing   labor

controversies laid out by Congress in  the NLRA.  It is precisely

this potential for incompatible or conflicting adjudications that

Congress sought to  avoid by leaving these  determinations in the

first instance to the NLRB.

          In  the end,  no recharacterization  of this  claim can

obscure the fact that, at bottom, this is a classic example of an

unfair labor practice  claim of the kind traditionally handled in

the first instance by the NLRB.  Since the controversy before the

MCAD and that resolved by the  NLRB are the same in a fundamental

respect,  and   the  risk   of  interference  with   the  Board's

jurisdiction  is obvious and  substantial, we hold  that the MCAD

                               -14-

has  no  jurisdiction to  entertain  Doulamis'  charge of  sexual

discrimination based on her  employer's alleged interference with

her union activities.  International Union of Operating Engineers                                                                           

v. Jones, 460 U.S. 669, 674 (1983).5                  

          B.Abstention                    B.Abstention

          We turn now to  what is in essence the  threshold issue

in  this appeal-whether  the district  court erred  in abstaining

under the  Younger doctrine.  In  Younger v. Harris, 401  U.S. 37                                                             

(1971),  the Supreme Court held  that a federal  court should not

enjoin  a pending  state criminal proceeding  except in  the very

unusual  situation that  an  injunction is  necessary to  prevent

great  and immediate irreparable injury.   Younger stands for the                                                            

proposition that  principles of comity require  "a proper respect

for  state functions, a recognition  of the fact  that the entire

country  is made up of a Union of separate state governments, and

a continuance of  the belief  that the  National Government  will

fare  best if the States are  left free to perform their separate

functions in  their separate ways."   Id. at  44.  The  Court has                                                  

since applied its  reasoning in Younger  to civil proceedings  in                                                 

                                                  

5   The  dissent devotes  a considerable  number of pages  to the
issue  of  whether Title  VII  and  the  NLRA provide  concurrent
remedies.  The Supreme Court has made  clear however, that when a
state proceeding is  claimed to  be preempted by  the NLRA  under
Garmon, the issue is a  choice-of-forum rather than a  choice-of-                
law  question.   See International Longshoremen's  Association v.                                                                        
Davis, 476  U.S. 380,  391 (1986).   As such,  "it is  a question               
whether  the  State  or  the  Board  has  jurisdiction  over  the
dispute."  Id.   If--as here--there  is preemption under  Garmon,                                                                          
then  state  jurisdiction  is  extinguished.    Id.    See  also,                                                                          
International  Union of Operating Engineers v. Jones, 460 U.S. at                                                              
680-81; Sears, 436 U.S. at 199 n.29; Garmon, 359 U.S. at 245.                                                     

                               -15-

which  important state  interests are involved.   See  Huffman v.                                                                        

Pursue, Ltd., 420 U.S.  592 (1975); Juidice v. Vail, 430 U.S. 327                                                             

(1977); Trainor v. Hern ndez, 431 U.S. 434 (1977).                                      

          In  Ohio  Civil  Rights  Comm'n  v.   Dayton  Christian                                                                           

Schools, 477  U.S.  619 (1986),  the principles  of comity  first                 

announced in Younger were  made extensive to state administrative                              

proceedings.   As a result,  where (1) vital  state interests are

involved, (2)  in an  ongoing state judicial  (or administrative)

proceeding, a  federal court  should abstain from  exercising its

jurisdiction  over a claim, (3) unless state law clearly bars the

interposition of the constitutional claims.  See Middlesex County                                                                           

Ethics Comm. v. Garden State Bar Assn, 457 U.S. 423, 432  (1982);                                               

Moore v. Sims, 442  U.S. 415 (1979).   "The pertinent inquiry  is                       

whether state proceedings afford an adequate opportunity to raise

the constitutional claims."  Middlesex, supra.                                                

          The dissent  asserts that,  rather than a  principle of

discretionary  deference, Younger abstention  requires a district                                                                

court  to abstain  whenever a  case falls  within the  doctrine's

parameters.    To the  extent it  relies  on the  Supreme Court's

decision in Colorado River  Water Conservation District v. United                                                                           

States, 424 U.S.  800, 816 n.22 as support for this blanket rule,                

however,  we respectfully differ.  The cited passage on which the

dissent  relies clearly refers  to that  category of  cases where

federal  jurisdiction  has  been   invoked  for  the  purpose  of

restraining  state  criminal  proceedings.   And  even  for  that                                      

category  of cases, the Supreme Court makes clear that abstention

                               -16-

is only  appropriate absent bad faith, harassment,  or a patently

invalid state  statute.   Id. at  816.   In fact, Colorado  River                                                                           

strongly reaffirmed the basic  principle that abstention from the

exercise of federal jurisdiction is the exception, not the rule:

            The doctrine of abstention, under which a
            district court may decline to exercise or                                        
            postpone    the     exercise    of    its
            jurisdiction,  is  an  extraordinary  and
            narrow  exception  to   the  duty  of   a
            district    court    to   adjudicate    a
            controversy    properly     before    it.
            Abdication  of  the obligation  to decide
            cases   can   be  justified   under  this
            doctrine   only    in   the   exceptional
            circumstances  where  the  order  to  the
            parties  to  repair  to the  state  court
            would   clearly    serve   an   important
            countervailing  interest.  It was never a
            doctrine of  equity that a  federal court
            should  exercise its  judicial discretion                                                               
            to  dismiss a suit merely because a State
            court could entertain it."

Colorado River, 424 U.S.  at 813-14 (emphasis supplied; citations                        

omitted).   See also, New Orleans Public Service, Inc. v. Council                                                                           

of the City of New Orleans, 491 U.S. 350, 359 (1989).                                    

          The  Commission  argues  that  the  case  at  bar  fits

squarely  within  the  principles  of  Younger  abstention.    We                                                        

disagree.   First,  the procedural  posture of this  case differs

from that of the customary case where abstention is traditionally

applied.  Ordinarily, federal courts abstain from the exercise of

jurisdiction over a particular controversy  out of respect for an

ongoing  state proceeding begun before the federal action.  It is

thought that  this procedural  mechanism forestalls the  friction

that  can arise when the  business of the  two systems--state and

federal--overlaps.   But the notion  of comity, which  to a great

                               -17-

extent  underlies  the  Younger   doctrine  of  abstention,  must                                         

accommodate  the  legitimate  interests  of both  the  state  and                                                          

national governments.  Younger,  401 U.S. at 44; Pennzoil  Co. v.                                                                        

Texaco, Inc., 481 U.S. 1, 10 (1987).                      

          In abstaining, the court below seemingly focused on the

situation  that  existed  on  December  8,  1994,  when  Chaulk's

complaint for declaratory and injunctive relief  was filed in the

United States  District Court for the  District of Massachusetts.

In doing so  however, the court  ignored the fact that  an unfair

labor  practice  charge,  based  on  the  same  facts  underlying

Doulamis' complaint of sex discrimination, had been filed against

Chaulk prior to her discrimination claims and was  pending before                      

the  NLRB at  the time  of the  filing of  her action  before the

Commission.    In  addition,  shortly after  Doulamis  filed  her

action, additional charges were filed by the Union, and the Board

continued to exercise its jurisdiction over these claims.

          Federal  courts  seek to  avoid needless  conflict with

state agencies  and withhold  relief by  way of  injunction where

state  remedies  are  available  and adequate.    Alabama  Public                                                                           

Service Commission v. Southern Railroad Co., 341 U.S. 341 (1951).                                                     

But where Congress, acting  within its constitutional  authority,

has vested a  federal agency with  exclusive jurisdiction over  a

subject  matter and the  intrusion of a  state would result  in a

conflict  of functions,  the federal  court may enjoin  the state

proceeding  in  order to  preserve the  federal right.   American                                                                           

Federation of  Labor  v. Watson,  327  U.S. 582,  593-95  (1946);                                         

                               -18-

Bowles  v.  Willingham,  321  U.S.  503,  510-11  (1944);  Public                                                                           

Utilities Commission of  Ohio v.  United Fuel Gas  Co., 317  U.S.                                                                

456, 468-70 (1943).

          This   case   is  similar   to   Freehold  Cogeneration                                                                           

Associates,  LP  v.  Board  of Regulatory  Commissioners  of  New                                                                           

Jersey, 44  F.3d 1178 (3d  Cir. 1995).   In  that case,  Freehold                

sought a declaratory judgment in the United States District Court

for  the  District of  New Jersey  that  the Board  of Regulatory

Commissioners of the State of New Jersey ("BRC") was preempted by

the Federal Public Utility Regulatory Policies Act ("PURPA") from

modifying  the  terms of  a  previously  approved power  purchase

agreement  between Freehold  and Jersey  Central Power  and Light

Company ("JCP&amp;L"), a  New Jersey public  utility.  Freehold  also

sought an  order  enjoining the  ongoing  BRC proceedings.    The

district court dismissed for lack of subject matter jurisdiction.

On appeal,  one of  the arguments  raised by  JCP&amp;L was  that the

federal court  should abstain  from resolving the  merits of  the

case even if it was found to possess subject matter jurisdiction.

The Third Circuit rejected the argument saying:

            [O]ur  concern  is  with  carrying  out a
            federal  statutory  scheme promoting  the
            development    of   alternative    energy
            sources.  The alleged intrusive action is
            not  by the  federal government,  but, on
            the  contrary,  by  a   state  regulatory
            agency.   We conclude  that abstention is
            not appropriate in this case and does not
            warrant any extended discussion.

Freehold Cogeneration, 44 F.3d at  1187 n.6.  As in Freehold,  we                                                                      

are  concerned here with carrying out a federal statutory scheme,

                               -19-

in  this case one promoting the development of a uniform national

labor policy.  The alleged intrusive action is not by the federal

government,  but by  the MCAD's  purported regulation  of conduct

within the NLRB's jurisdiction.

          We  note that in  the particular context  of this case,

the application of Younger abstention would result in significant                                    

prejudice to Chaulk, who  entered into a comprehensive settlement

agreement with the  NLRB through which all unfair  labor practice

claims  were resolved,  subject to  Chaulk's compliance  with the

conditions  set forth therein, only to be faced with the prospect

of having to  defend its actions once  again, this time before  a

state forum.  Such an expansive interpretation of  the abstention

doctrine   would  have  the  effect  of  encouraging  duplicative

litigation,   with  the   resultant   waste   of   judicial   and

administrative resources, as well  as the danger to federal-state

relations that could result from conflicting adjudications.

          Under these circumstances, where a  federal agency with

primary  jurisdiction over the  controversy has already exercised

said  jurisdiction,  it  would  be inconsistent  with  the  above

mentioned  principles  of  comity   and  equal  respect  for  the

interests  of both the federal and state government for a federal

court  to  abstain on  Younger  grounds  from  deciding  a  claim                                        

properly  before  it,   in  order   to  give  way   to  a   state

administrative  action  filed after  the federal  proceedings are                                             

underway.  Put simply, comity works both ways.                                                       

          The  Commission nevertheless  urges  us to  extend  the

                               -20-

application of Younger  and its progeny  to the circumstances  of                                

this  case.  To  this end, MCAD  argues that the  facts before us

satisfy the relevant three part test set out by the Supreme Court

in  Middlesex,  457 U.S.  at  432.   As  it is  however,  even an                       

analysis of the  case within this framework leads us  to the same

conclusion.  Abstention was improper in this case.  We explain.

          A number of courts have held that Younger abstention is                                                             

inappropriate   where  a   claim  of   preemption  is   "facially

conclusive" or  "readily apparent", because no  significant state

interests are served  when it is clear that the state tribunal is

acting beyond the  lawful limits  of its authority.   Bud  Antle,                                                                           

Inc.  v. Barbosa,  35  F.3d 1355,  1365-66  (9th Cir.  1994),  as                          

amended  by,  45 F.3d  1261,  1272-73 (9th  Cir.  1994); Gartrell                                                                           

Construction,  Inc.  v.  Aubry,  940  F.2d  437,  441  (9th  Cir.                                        

1991)(citing Champion International Corp. v. Brown, 731 F.2d 1406                                                            

(9th Cir. 1984);  National R.R. Passenger  Corp. v. Florida,  929                                                                     

F.2d  1532,   1537  n.12  (11th  Cir.   1991)(citing  Baggett  v.                                                                       

Department of Professional Registration,  717 F.2d 521, 524 (11th                                                 

Cir.  1983));  Southwestern  Bell  Tel. v.  Ark.  Public  Service                                                                           

Commission,  824 F.2d 672, 673  (8th Cir. 1987);  Kentucky W. Va.                                                                           

Gas  Co. v. Pennsylvania Pub.  Util. Comm'n, 791  F.2d 1111, 1115                                                     

(3d Cir. 1986).   Chaulk asserts that the Commission  is patently

acting  beyond its  jurisdictional boundaries  and therefore,  no

principle   of   comity  precluded   the   district   court  from

entertaining its claim of preemption on the merits.  In response,

the  Commission cites the Supreme Court's decision in New Orleans                                                                           

                               -21-

Public Service, Inc.  v. Council of the City  of New Orleans, 491                                                                      

U.S.  350 (1989)  ("NOPSI")  for the  proposition  that the  mere

assertion  of  a substantial  constitutional  challenge  to state

action, such as an argument of federal preemption engenders, will

not alone compel the exercise of federal  jurisdiction.  Whatever

the merits of MCAD's  assertion however, even the NOPSI  decision                                                                 

leaves open the possibility that a "facially conclusive" claim of

preemption might  render abstention  inappropriate.  Id.  at 367.                                                                 

Consequently, we  examine the merits of  Chaulk's contention that

abstention is also  inappropriate because  preemption is  readily

apparent in this context.

          We   have  explained   above  the   particularities  of

Doulamis'  claims  before  the  Commission.    She  complains  of

incidents  of interference with  her union activities  as a union                                                                           

organizer.   We have observed that the very same conduct provides                   

the factual basis for  the unfair labor practice  charges brought

by the  Union on her behalf.   We have also  highlighted the fact

that the  NLRB incorporated  these charges  into a  complaint and

notice  of hearing  claiming violations  to sections  8(a)(1) and

8(a)(3)  of  the  NLRA.    As  we  have  noted,  her  claims  are

fundamentally grounded in an assertion that the rights  which her

employer interfered with involve her union activity.                                                             

          Under these  circumstances, were we to  allow Doulamis'

state  claims to go forward by simply artfully pleading her claim

of unfair labor  practices as one  motivated by a  discriminatory

animus because of her gender, we would be compromising the NLRB's

                               -22-

role as chief  arbiter of labor disputes.   Indeed, there are few

unfair labor  practices which could not  be similarly repackaged.

Similarly  aggrieved individuals  could  use such  an opening  to

bypass the NLRB  merely by ascribing  a myriad of  discriminatory

motives  to  the  relevant  conduct (i.e.  age,  race,  religious

belief,  etc.),  thereby  creating  a  system  of  labor  dispute

adjudication parallel to the NLRB, leaving  the state and federal

courts  to  grapple  piecemeal   with  issues  Congress  intended

primarily for NLRB resolution.

          Faced with this  particular factual  scenario, we  find

that  under the Garmon doctrine it is "readily apparent" that the                                

Commission  is  acting  beyond  its  jurisdictional  authority by

entertaining Doulamis' complaint, for it is readily apparent that

Chaulk's conduct at issue is at least arguably prohibited by, and

thus subject to the  NLRA.  Accordingly, we hold  that abstention

was  inappropriate  and  that   the  district  court  abused  its

discretion when it  dismissed Chaulk's complaint on the  basis of

Younger abstention.                 

                         III.  CONCLUSION                                   III.  CONCLUSION                                                   

          In sum, pursuant to  the Garmon preemption doctrine, we                                                   

find that Ms. Doulamis' claims are preempted by the NLRA, thereby

depriving the MCAD  of jurisdiction to entertain her action based

on gender discrimination.  In  addition, we find that  abstention

was inappropriate in this  case, as the principles of  comity and

of equal respect for state and  federal functions weighed against

such  an  abdication of  federal  jurisdiction  over the  present

                               -23-

controversy.    Accordingly,  Chaulk is  entitled  to  injunctive

relief, consistent with this opinion.

          Finally,  with  regard  to  MCAD's  argument  that  the

Eleventh  Amendment bars Chaulk's  claims against the Commission,

we  point  out that  the Supreme  Court  has recognized  that the

Eleventh Amendment  does not  preclude  properly pleaded  actions

against state officials when the relief sought is prospective and

equitable in  nature.  See Ex  Parte Young, 209 U.S.  123 (1908);                                                    

Will  v. Michigan Department of State Police, 491 U.S. 58 (1989).                                                      

We  therefore  reverse the  judgment  of the  district  court and

remand  the  case,  so  that  Chaulk  may  address  any  pleading

deficiencies that currently preclude the continued prosecution of

its petition for relief.

          Reversed and remanded.                                         

          LYNCH, Circuit Judge, dissenting.  Because Congress has                    LYNCH, Circuit Judge, dissenting.                                        

clearly expressed  its intent to allow  state anti-discrimination

statutes  to operate in areas such  as this that may overlap with

the    National   Labor    Relations   Act    ("NLRA"),   Petrina

Doulamis/Sullivan's action is not, I believe, preempted.  Because

the federal  courts are being  asked to enjoin  the Massachusetts

Commission  Against  Discrimination   ("MCAD")  from  hearing  an

ongoing gender discrimination action  over which the state agency

plainly   has  jurisdiction,   I  believe   that  abstention   is

appropriate.  I respectfully dissent.

          Under  San Diego  Building  Trades  Council,  Millmen's                                                                           

Union,  Local  2020  v. Garmon,  359  U.S.  236  (1959), and  its                                        

                               -24-

progeny, and in  light of the  clear congressional mandate  under

Title VII,  42 U.S.C.A.   2000e to e-17 (West 1994 &amp; Supp. 1995),

that  state  anti-discrimination  statutes  have  authority  over

claims  for discrimination coextensive  with Title VII, Doulamis'

MCAD  claim coexists  with and  is not  displaced by  the federal

labor laws.   The employer's  defense here presents  no "facially

conclusive"  claim  for  preemption.    See  New  Orleans  Public                                                                           

Service, Inc.  v. Council of City  of New Orleans, 491  U.S. 350,                                                           

367 (1989).  Garmon preemption is a question over which the state                             

courts  have  concurrent jurisdiction  and Chaulk  Services, Inc.

("Chaulk") will have a  full and fair opportunity to  present the

question  to the Massachusetts courts.  In my view, abstention is

required under Younger v. Harris, 401 U.S. 37 (1971).                                          

                               -25-

                                I.

          Garmon  says  that  "[w]hen  an  activity  is  arguably                          

subject to   7  or   8 of the  [NLRA], the States as well  as the

federal  courts must  defer to  the exclusive  competence  of the

National  Labor Relations Board  ["NLRB"] if the  danger of state

interference with national policy is to be averted."  Garmon, 359                                                                      

U.S. at  245.6   Garmon  also says  that  this principle  is  not                                 

absolute.    There is  no need  to defer  to  the NLRB  where the

conduct  at issue  is of  "peripheral concern"  to federal  labor

policy or where the state regulated activities touch "interests .

. . deeply rooted  in local feeling and responsibility."   Id. at                                                                        

243-44.

          The  Massachusetts anti-discrimination  statute touches

"interests so  deeply rooted in local  feeling and responsibility

that,  in  the  absence of  compelling  congressional  direction,

[courts cannot] infer that Congress [has]  deprived the States of

the  power to act."  Garmon, 359 U.S. at 244.  This is so whether                                     

or not invidious discrimination in employment can be described as

being  of "peripheral  concern" to the  NLRA.   Cf. Massachusetts                                                                           

Electric Co. v. Massachusetts Commission  Against Discrimination,                                                                          

375  Mass.   160,  174   (1978)  (employment  discrimination   of

peripheral concern to  the NLRA); Walker  Mfg. Co. v.  Industrial                                                                           

Commission,  27 Wis.2d  669,  681 (1965)  (age discrimination  of                    

peripheral   concern   to   Labor  Management   Relations   Act).
                                                  

6  Sex discrimination  is not specifically addressed in  the NLRA
and  so  it  is not  "clearly  prohibited"  by    8  or  "clearly
protected" by   7 of the NLRA.

                               -26-

Originally enacted in 1946, the Massachusetts anti-discrimination

statute,  Mass. Gen.  L. ch.  151B,     1-10 (1994),  is eighteen

years  older than  Title  VII.   See  1946 Mass.  Acts  368.   It                                              

regulates  conduct  in employment  in  order  to  carry  out  the

Commonwealth's interest in ensuring  that its workplaces are free

from particular  categories of discrimination.   It represents no

less  an exercise  of Massachusetts'  police power  than building

codes  or fire  regulations.   The interests  it protects  are at

least  as weighty  as the  interests sought  to be  vindicated in

actions the Supreme Court has specifically held not preempted  by

Garmon.  See Belknap,  Inc. v. Hale, 463 U.S. 491  (1983) (breach                                             

of   contract  and   misrepresentation  actions   by  replacement

workers); Farmer v. United  Brotherhood of Carpenters and Joiners                                                                           

of  America,  Local  25,  430  U.S.  290  (1977)  (infliction  of                                 

emotional  distress);  Linn  v.  United Plant  Guard  Workers  of                                                                           

America, Local 114, 383 U.S. 53 (1966) (libel).                            

          That chapter 151B  touches interests  deeply rooted  in

local feeling  and responsibility is  not disputed.   Rather, the

majority  asserts  that  Doulamis'  claim  is  not  really  a sex

discrimination claim, describing  Doulamis' claim as  the product

of "artful[]  pleading."  With  deference, I  believe the  record

establishes  that   Doulamis'  claim  is  clearly   one  for  sex

discrimination and has been treated as such by the MCAD.7
                                                  

7   Doulamis' claim cannot  be preempted simply  because the case
arises from a labor dispute.  The Supreme Court has squarely held
that Garmon preemption does not turn on whether a claim arises in                     
the  context of  a labor  dispute.   Linn, 383  U.S. at  63 ("Nor                                                   
should the  fact that  defamation arises  during a labor  dispute

                               -27-

          On the facts  as alleged, Doulamis  has stated a  claim

before the MCAD for  sex discrimination under chapter 151B.   She

asserts, inter alia:                             

            On  November 10,  1993,  I  was  harassed
            about my  union activity.  I  believe the
            reason  is because  I am  a female.   The
            males who are also involved are not being
            harassed.  Therefore, I charge Respondent
            with unlawful  discrimination against me,
            in violation of M.G.L. Chapter 151B . . .
            and Title VII . . . .

            I believe  that I am  being single[d] out
            by the Respondent because  I am a female.
            There  are  numerous  other   male  union
            organizers who are not being harassed.

          That  Doulamis asserts a  bona fide  sex discrimination

claim is  buttressed by the  underlying papers  in the  pleadings

submitted  by  Chaulk  to  the  district  court.    Doulamis  was

apparently a well-respected employee and was featured in Chaulk's

publicity materials.  From  the time she began working  at Chaulk

in  1990 until the autumn  of 1993, Doulamis  received no written

warnings  and no patient complaints.   In the middle of 1993, the

International Association  of EMTs  and Paramedics began  a union

organizing campaign at Chaulk.   Although not initially involved,

Doulamis became involved in the campaign during the fall of 1993,

when she and Eric Burgess, a male Chaulk employee, wrote a letter

to  the   president  of  Chaulk's  parent   company  calling  for

organization  of a  union.   On November  10, 1993,  Doulamis was

called from a training  session to meet with  the CEO of  Chaulk,

                                                  

give   the   Board   exclusive   jurisdiction   to   remedy   its
consequences."). 

                               -28-

Nicholas O'Neil, and a  vice president, Joseph Gilmore.   The two

men told Doulamis at  that meeting that she was "pretty" and that

they  believed that the other employees at Chaulk would listen to

her because  she was "pretty."   They asked her to  become a non-

union  advocate,  saying  that  her  physical  appearance   would

persuade other employees to vote against the union.  She refused.

Shortly  thereafter,  Doulamis  began   receiving  a  series   of

harassing warnings  from Chaulk  management about her  conduct on

the job and her  union activities.  Burgess, who  had co-authored

the  pro-union  letter  with   Doulamis,  did  not  receive  such

harassment.

          Doulamis believed  that she  was being singled  out for

punishment  for her  union activities  because of  her sex.   The                                                                    

heart  of her complaint  before the MCAD  was that  she was being

harassed for  her union activities while male union organizers --

including one  who had  co-authored the letter  precipitating the

harassment -- were not (or at least were not until after Doulamis

filed her complaint  with the  MCAD).  This  allegation states  a

prima facie claim of sex discrimination under chapter 151B.   See                                                                           

Ramsdell v. Western Massachusetts Bus Lines, Inc., 415 Mass. 673,                                                           

679 (1993);  see  also  Blare  v. Husky  Injection  Molding  Sys.                                                                           

Boston, Inc., 419 Mass. 437 (1995).                        

          Under the facts of this case Doulamis  could allege two

distinct wrongs -- a claim for unfair labor practices and a claim

for sex discrimination.  Characterizing Doulamis' latter claim as

artful pleading assumes away  the difficult legal question raised

                               -29-

by  Doulamis' case and squarely presented in the briefs:  whether

a sex discrimination claim  based on state law is preempted if it

arises out  of a course of events  that also may give  rise to an

unfair labor practice charge.

          The  Supreme Court in Sears, Roebuck &amp; Co. v. San Diego                                                                           

County District  Council of Carpenters, 436 U.S. 180 (1978), held                                                

that  even if  a case  may come  within the  scope of  the Garmon                                                                           

preemption doctrine  when applied in a  "mechanical fashion," id.                                                                           

at  188,  there is  still  no  preemption over  conduct  arguably

prohibited by the  NLRA unless the  controversy before the  state

court  is identical to the dispute that could have been presented                             

under  the NLRB.   Id.  at  197.8   Doulamis' MCAD  claim is  not                                
                                                  

8  At  issue in Sears was conduct  that could be analyzed  in two                               
distinct  ways.  The  conduct was  both "arguably  protected" and
"arguably  prohibited" by the NLRA.  The Court drew a distinction
between those two categories  of conduct (although in that  case,
the same conduct  happened to  qualify as both)  and imposed  two
distinct  lines of  analysis.    If  the  activity  at  issue  is
"arguably protected,"  a finding of preemption  is required where
an aggrieved party  has a reasonable opportunity of  invoking the
NLRB jurisdiction or of inducing his adversary to do so.   Id. at                                                                        
207.  If an activity is "arguably prohibited," state jurisdiction
is preempted only if  the issues presented to the state court are
identical to  those that  could be  presented to  the NLRB.   The
latter rubric leaves much more room for state regulation.  Id. at                                                                        
200.   Since sex discrimination  is clearly not  protected by the
NLRA,  the conduct  at issue  in this case  falls under  the more
generous "arguably prohibited" rubric.

   The majority appears to apply to this case criteria that Sears                                                                           
made applicable to "arguably protected" conduct.  For example, in
determining that the controversy here is identical  to that which
could have been  put to  the NLRB the  majority says,  "[p]lainly
this is not a case where the NLRB declined to exercise its lawful
jurisdiction over a labor controversy, or where the NLRB's actual
exercise  of  jurisdiction  remains  a  matter  of  speculation."
Majority  Op.  at  typescript  12;  see  also  Majority   Op.  at                                                       
typescript  10 n.4.   While  this  consideration is  important to
cases  involving  "arguably  protected"  conduct, it  is  not  to

                               -30-

identical to that which could have been heard by the NLRB.

          To  make  out her  claim  on  her chapter  151B  action

Doulamis needs to show  (1) a prima facie case  of discrimination

and (2)  "either that  the employer's  articulated reasons are  a

pretext or  by  direct evidence  that the  actual motivation  was

discrimination."  Blare, 419 Mass. at 444.  The action before the                                 

NLRB could  not have  turned on  such an inquiry.   Further,  the

terms of the employer's settlement agreement with the NLRB do not

establish that Doulamis' claim before the MCAD is not a bona fide

sex discrimination claim.9

          On the alleged facts of this case -- where Doulamis and

Burgess  were  engaged in  the  same  activity (co-authoring  the

letter) -- the  MCAD will not have  to decide as a  matter of law

whether one of the two  was engaged in union activity, while  the

other was not.   In other words, insofar as  Doulamis and Burgess

were  doing the  same  thing (yet  only  one was  harassed),  the

                                                  

"arguably prohibited" conduct.

9  There also seems to be an absence of record support for either
the proposition that the  sex discrimination action was addressed
before  the  NLRB  or  the  proposition that  the  settlement  is
"comprehensive."  The settlement agreement, dated March 22, 1995,
does not refer to alleged sex discrimination.  Also, according to
its terms, the  agreement applies "only  [to] the allegations  in
the above captioned cases and does not constitute a settlement of
any other cases  or matters."   The "above  captioned cases"  are
docket numbers "1-CA-31196, 31945(2), 32267, 32378, 32504, 32534,
32645,  32661."   Only one  of those docket  numbers, 1-CA-31196,
filed  December  9,  1993,  involves Doulamis.    Apparently  not
included  in the settlement are  the other two  claims that were,
according  to Chaulk,  made  by Doulamis:   docket  numbers 1-CA-
31157, filed November 29,  1993, and 1-CA-31181-2, filed December
6, 1993.

                               -31-

question  of   whether  the   activities  were   protected  union

activities cancels out of the equation.

          This  is why  the  MCAD, when  presented with  Chaulk's

claim of preemption, said:

              In  the  Complainant's presentation  of
            her   discrimination  case   before  this
            Commission,    the   'merits'    of   the
            underlying  labor  dispute  need  not  be
            resolved.  It is  not necessary for  this
            Commission  to  find that  the Respondent
            did,   in   fact,   interfere  with   the
            Complainant's  efforts to  organize union
            activities;  nor is  it  necessary for  a
            determination  to  be made  regarding the
            Respondent's  anti-union  animus, if  one
            should  exist.   Rather,  the Complainant
            must   show   that   she    was   treated
            dissimilarly by the Respondent,  and that
            the impetus for that dissimilar treatment
            was due to her gender.  It is neither the
            role nor the  goal of this  Commission to
            assess the catalyst  of the  Respondent's
            actions.      It   is,    however,   this
            Commission's purpose to ensure  that such
            actions are not gender motivated.

              In the present case, the Commission may
            decide  the  issue  in   dispute  without
            making   a  threshold   determination  of
            whether the employer had  interfered with
            the employee's union activities.  It need
            only determine whether the  treatment the
            Complainant received, rightly or wrongly,
            was  different  from  that  of  her  male
            counterparts and motivated by her gender.

          It  is in  this context  that the  MCAD's interrogatory

must be understood.   While it  is true that  the MCAD has  asked

Chaulk questions relating to union organizing activities (and has

perhaps   shown   insufficient   sensitivity  to   the   possible

jurisdictional  problem),  it  has done  so  for  the purpose  of

determining  factually whether  Doulamis was  treated differently

                               -32-

than men for doing the same thing, and not to define legally what

is or is  not a union activity  under the NLRA.  As  the MCAD has

recognized,   Doulamis'   sex    discrimination   claim    exists

independently of any labor  law claim.  Chaulk's conduct  was not

wrongful only by virtue of, or with reference to, the labor laws.

Cf. Tamburello  v. Comm-Tract Corporation, No.  95-1295, slip op.                                                   

at 10-11 (1st Cir.  October 2, 1995) (RICO claim  preempted under

Garmon  where reviewing court  would be forced  to decide whether                

some portion  of defendant's conduct violated  federal labor laws

to  determine  whether  the  plaintiff  had  established  a  RICO

predicate act).10

          The Sears inquiry suggests that the MCAD claim does not                             

fall within the scope  of Garmon preemption.  There  is, however,                                          

an  even  more  compelling  consideration that  yields  the  same

conclusion.   Of paramount importance in  any preemption inquiry,

including  one  under  Garmon,  is  congressional  intent.    See                                                                           

Metropolitan  Life Ins. Co.  v. Massachusetts, 471  U.S. 724, 747                                                       

                                                  

10    Significantly, particularly  with  respect  to the  Younger                                                                           
issues raised in Part  II, any issue concerning whether  Doulamis
was or was not engaged in union activity will arise in this case,
if at all, by way of Chaulk's potential defense to  the action --
that Doulamis was treated differently than Burgess and other male
organizers because the male  organizers were engaged in protected
union  activity, while Doulamis was  not.  The  Supreme Court has
said in the analogous context of   301 preemption under the Labor
Management Relations Act that a defense of preemption is not even
a  sufficient basis for removal  of the action  to federal court.
See Caterpillar Inc. v. Williams, 482 U.S. 386, 399 (1987)  ("[A]                                          
defendant cannot, merely by injecting  a federal question into an                   
action that asserts what is plainly  a state-law claim, transform
the action into one arising under federal law,  thereby selecting
the forum in which  the claim shall be litigated.")  (emphasis in
original).

                               -33-

(1985) (stating, in discussing  NLRA preemption, including Garmon                                                                           

preemption, that "as in any preemption analysis, [t]he purpose of

Congress  is  the   ultimate  touchstone")  (internal  quotations

omitted).  If Congress  has clearly evidenced its intent  one way

or the  other on the question  of whether states may  regulate an

area of conduct,  federal courts  must follow it.   Congress  has

clearly  evidenced  its  belief  that  state  anti-discrimination

statutes do not unduly interfere with federal labor policy.

          Doulamis' claims  not only come under  chapter 151B but

also  come within the scope of Title  VII, 42 U.S.C.A.   2000e to

e-17 (West 1994 &amp; Supp. 1995), and are within the jurisdiction of

the Equal Employment Opportunity Commission ("EEOC").  She has in

fact alleged a violation  of Title VII and  has indicated in  her

MCAD complaint that she wishes to have her charges filed with the

EEOC.

          The  Supreme Court has said that the NLRA and Title VII

provide  concurrent  remedies.   See Alexander  v. Gardner-Denver                                                                           

Co.,  415 U.S.  36, 47-48 (1974);  see also Beverly  v. Lone Star                                                                           

Lead  Construction  Corp., 437  F.2d  1136, 1140  n.22  (5th Cir.                                   

1971); cf. Britt  v. Grocers Supply  Co., Inc., 978  F.2d   1441,                                                        

1447 (5th Cir. 1992) ("[W]e have held that claims under Title VII

are not preempted by the NLRA.  [Our] cases hold that a remedy is

available  under  both  the  NLRA  and  Title VII  and  recognize

concurrent  jurisdiction  between   Title  VII  and  the   NLRA."

(footnote omitted)), cert. denied, 113 S. Ct. 2929 (1993); Morgan                                                                           

v. Massachusetts General Hosp., 901 F.2d 186, 194 (1st Cir. 1990)                                        

                               -34-

("Clearly,  if  an employee  has  engaged  in expression  against

employer policies,  even within the context  of union activities,

which  violate  the  Civil  Rights Act,  such  as  discriminatory

treatment of  minorities or  sexual harassment, and  the employee

alleges  discharge for  that expression,  section 704(a)  [of the

Civil Rights  Act] would be implicated for the narrow expression-

related claims.").11

          Thus,  even  accepting  the majority's  view  that  the

factual basis for the sex  discrimination claim provides the same

basis for the unfair  employment practice claim and that  the sex

discrimination  claim  is  identical  to that  before  the  NLRB,

Doulamis  is still entitled to  pursue her claim  under Title VII

before the  EEOC.  See Alexander,  415 U.S. at 47-48.   Since the                                          

conduct  prohibited by  Title  VII is  nearly  the same  as  that

proscribed  by chapter  151B and  Congress intended Title  VII to

provide a concurrent  remedy to the NLRA in areas  of overlap, it

would be difficult  to impute  to Congress any  hostility to  the

enforcement of  chapter 151B with  respect to areas  of potential

overlap with the NLRA.

          There  is, however, no need  to rely on  such a general

proposition  in this  case  because  Congress  has  affirmatively

stated in the  language and  through the structure  of Title  VII

itself that  state anti-discrimination laws may  provide a remedy

that overlaps with the NLRA.  Not only did Congress affirmatively
                                                  

11  It is clear also that jurisdiction is concurrent  between the
EEOC and NLRB over claims that may fall within each statute.  See                                                                           
Beverly, 437 F.2d at 1140, n.22.                 

                               -35-

preserve the operation of state anti-discrimination laws in Title

VII,  see 42  U.S.C.A.    2000e-7, but  it made  the  state anti-                   

discrimination statutes  an integral  component of the  Title VII

enforcement structure.   See  42 U.S.C.A.    2000e-5(c) ("section                                      

706(c)").  Section 706(c) of  Title VII explicitly provides  that

in  states  like  Massachusetts (which  have  anti-discrimination

statutes and an agency charged with  enforcing the state statute)

jurisdiction in the state  administrative agency is exclusive for                                                                       

the first  60 days  after a claim  is filed.   See 42  U.S.C.A.                                                              

2000e-5(c).

          The importance of state anti-discrimination statutes in

the  enforcement  scheme of  Title VII  was  of major  concern to

Congress in enacting Title VII.  Isaac v. Harvard University, 769                                                                      

F.2d 817, 822 (1st Cir.  1985)  ("The issue reflected in  section

706(c), the  relationship between federal and  state remedies for

employment discrimination, received much attention throughout the

legislative  process.").    The  legislative history  shows  that

section  706(c)  of Title  VII  was  enacted "'to  keep  primary,

exclusive jurisdiction in the hands of the State commissions  for

a  sufficient  period of  time  to let  them  work out  their own

problems at the local level.'"  Id. (quoting 110 Cong. Rec. 13087                                             

(1964)  (comments of  Senator Dirksen)).12   It  was  critical to
                                                  

12   The  EEOC has  recognized the  importance of  allowing state
anti-discrimination statutes to  operate in  order to  effectuate
Congress'  purposes  for  Title  VII.     See,  e.g.,  29  C.F.R.                                                              
  1601.13(a)(3)(i) (1995) ("In order  to give full weight  to the
policy  of section 706(c) of  title VII, which  affords State and
local fair employment practice  ["FEP"] agencies that come within
the  provisions of that section  an opportunity to remedy alleged

                               -36-

the passage of  Title VII that  the federal government  initially

defer  to   the  states  in  matters   involving  discrimination.

Moreover,  Congress  did not  devise  this  enforcement structure

simply for administrative convenience (i.e., to avoid duplication

of  effort).  As this  court has previously  said, section 706(c)

"was  first, and foremost, a  statute of deference."   Isaac, 769                                                                      

F.2d at 824; see also id. at 824 n.9 (citing Oscar Mayer &amp; Co. v.                                                                        

Evans,  441  U.S. 750  (1979)  and  stating  that "[t]he  Court's               

implicit  message   appears  to   be  that  deference,   and  not

duplication,  was  at  the  heart  of  section  706(c)").13   And

Congress  clearly  had the  NLRA in  mind  when it  mandated this

principle of deference to the state anti-discrimination statutes.

See Alexander, 415 U.S.  at 48 n.9 (quoting  110 Cong. Rec.  7207                       

(1964)  (where Senator Joseph Clark,  one of the  sponsors of the

bill,   introduced   an   interpretive  memorandum   specifically

mentioning the relationship between Title VII and the NLRA)).

          If  Congress  believed  that state  anti-discrimination

statutes could  not regulate  coextensively with Title  VII, then

perhaps preemption would  be appropriate.   But that  is not  the

case.  Nothing  in Title VII says  that state anti-discrimination
                                                  

discrimination concurrently regulated by title VII or the ADA and
State  or   local  law,  the  Commission   adopts  the  following
procedures with  respect to allegations  of discrimination  filed
with the Commission.").

13    Under  the  EEOC's  regulations the  MCAD  is  not  only  a
designated FEP agency, see 29 C.F.R.   1601.74  (1995), but it is                                    
a certified designated FEP agency, see   1601.80 (1995), to which                                                
the EEOC gives a higher level of deference than it otherwise does
to designated FEPs.  See 29 C.F.R.   1601.75(a) (1995).                                  

                               -37-

statutes  cannot  apply  coextensively  with  Title  VII.    More

significantly,  there  clearly  is  nothing that  says  that  the

exclusive  jurisdiction of  state  administrative agencies  under

section  706(c) is limited to  cases under Title  VII that do not

overlap with the NLRA.     

          It  is  possible  to  draw  at  least  two  conclusions

relevant to congressional intent from Title VII.  First, Congress

affirmatively  intended  that state  anti-discrimination statutes

would operate to  regulate conduct  covered by Title  VII to  the

same extent as  Title VII itself and,  thus, in areas  that might

also be covered  by the NLRA.   Second,  Congress could not  have

intended to eliminate the operation of state  anti-discrimination

statutes  over claims  covered by  Title VII  because  that would

actively impair  the  operation of  Title VII  and frustrate  the                         

enforcement  scheme   Congress  envisioned.     Not   even  ERISA

preemption,   which  is   arguably  much   broader  than   Garmon                                                                           

preemption, see Metropolitan Life  Ins. Co. v. Massachusetts, 471                                                                      

U.S. 724,  747 (1985) (distinguishing ERISA  preemption from NLRA

preemption  by  stating  that  ERISA  preemption  is  statutorily

mandated), allows preemption where  it would impair the operation

of Title VII.  See Shaw v. Delta Airlines, Inc., 463 U.S. 85, 102                                                         

(1983)  (where ERISA  preemption of  a state  anti-discrimination

statute  would impair  the operation  of Title  VII, there  is no

preemption).  The reasonable conclusion is that Congress intended

to allow  state anti-discrimination statutes to  overlap with the

NLRA.

                               -38-

          The Supreme  Court's decision in Alexander  v. Gardner-                                                                           

Denver Co., 415 U.S.  36 (1974), reinforces this conclusion.   In                    

Alexander the Court was called upon to determine the relationship                   

between   the  federal   courts  and   the  grievance-arbitration

machinery of  collective bargaining agreements  in the resolution

and enforcement of an individual's rights under Title VII.  There

an  employee  had a  claim  for discrimination  that  was clearly

covered by  a collective  bargaining agreement.14   At issue  was

whether  the  employee's remedies  provided  in  the   collective

bargaining  agreement  (and subject  to arbitration)  precluded a

suit   in  federal  court  based  on  Title  VII.15    The  Court

unanimously held that it did not, saying:

            [L]egislative  enactments  in  this  area
            have  long evinced  a  general intent  to
            accord  parallel or  overlapping remedies
            against  discrimination.    In the  Civil
            Rights Act of 1964,  42 U.S.C.   2000a et                                                               
            seq.,   Congress    indicated   that   it                          
            considered     the     policy     against
            discrimination  to  be  of  the  "highest
            priority."      Newman  v.   Piggie  Park                                                               
            Enterprises, [390 U.S. 400,  402 (1968)].                                 
            Consistent  with  this  view,  Title  VII
            provides for consideration of employment-
            discrimination claims  in several forums.
            See  42 U.S.C.     2000e-5(b) (1970  ed.,                         
            Supp. II) (EEOC); 42 U.S.C.    2000e-5(c)
            (1970  ed.,  Supp. II)  (state  and local                                                               
            agencies); 42 U.S.C.    2000e-5(f)  (1970                              
            ed., Supp. II) (federal courts).  And, in
            general,  submission  of a  claim  to one
                                                  

14   The right  to bargain  collectively is, of  course, an  NLRA
conferred right.   Allis-Chalmers Corp.  v. Lueck, 471  U.S. 202,                                                           
213 n.8 (1985).

15  In Alexander, as here,  there had been no waiver of statutory                          
rights.   See Gilmer  v. Interstate/Johnson Lane  Corp., 500 U.S.                                                                 
20, 35 (1991).

                               -39-

            forum   does   not   preclude   a   later
            submission  to  another.   Moreover,  the
            legislative   history    of   Title   VII
            manifests a congressional intent to allow
            an individual to pursue independently his
            rights under  both  Title VII  and  other                                                               
            applicable state and federal statutes.                                                           

Alexander,  415  U.S.  at  47-48  (emphasis  supplied;  footnotes                   

omitted);16  see also  Brown  v. Hotel  and Restaurant  Employees                                                                           

and Bartenders Intern. Union, Local 54, 468 U.S. 491 (1984).17                                                
                                                  

16    The  Court has  applied  a  similar  analysis in  analogous
situations.   See Lingle v.  Norge Division of  Magic Chef, Inc.,                                                                          
486 U.S. 399, 412 (1988) (suggesting that "  301 does not preempt
state anti-discrimination  laws, even  though a suit  under these
laws,  like a  suit  alleging retaliatory  discharge, requires  a
state court  to determine whether  just cause existed  to justify
the discharge." (citation omitted)); Colorado Anti-Discrimination                                                                           
Commission  v.  Continental Air  Lines, Inc., 372  U.S. 714,  724                                                      
(1963) (rejecting  a claim  that a state  anti-discrimination law
was  preempted by the Railway Labor Act,  which is similar to the
National Labor Relations Act).

17  At issue in Brown was whether     86 and 93 of the New Jersey                               
Casino Control Act (which set qualifications for union officials)
were preempted by    7 of the NLRA.   It was argued that  the New
Jersey statute was preempted because it interfered with the right
protected under   7 of employees to choose their union officials.
The Supreme Court held that   7 did not  completely preempt    86
and 93 of the New Jersey statute.  In the  Court's view, Congress
had, through  the passage  of the Labor-Management  Reporting and
Disclosure Act  ("LMRDA"), disclaimed any intent  to pre-empt all
state  regulation  which  touched  upon  the  specific  right  of
employees to  decide which individuals will serve as officials of
their bargaining  representatives.  The  LMRDA had imposed,  in  
504(a),    federal    qualification    standards     for    union
representatives.  Because the  LMRDA affirmatively preserved  the
operation of  state  laws  in    603  and  made    504(a)  itself
dependent  in part on state  laws for its  enforcement, the Court
held that state laws could impose their own similar qualification
standards on union officials.  Id. at 509.                                            

   Brown is highly instructive  on the type of approach  required                  
for this  case.  In Brown,  the Court focussed on  the indicia of                                   
congressional  intent that could be  found not just  in the NLRA,
but also in  a parallel  federal statute.   The parallel  federal
statute there specifically reserved  a place for state regulation
over the conduct coming within its  scope.  While the LMRDA  does

                               -40-

          National labor relations policy  does not begin and end

with the  NLRA.  Title VII  is as much  a part of the  network of

labor relations  law  as is  the  NLRA.   Where Congress  has  so

clearly indicated  that  state anti-discrimination  laws  are  to

operate hand in hand with Title VII (indeed, for a limited period

to  the exclusion  of  Title VII)  it  is difficult  to  conclude

Congress intended  preemption under  the circumstances here.   In

the  words  of Garmon,  preemption  should  not  be found  absent                               

"compelling congressional  direction."  Garmon, 359  U.S. at 244.                                                        

Here, all the congressional direction is to the effect that state

anti-discrimination   statutes   may  supplement   federal  laws,

including federal labor laws,  and Garmon preemption is therefore                                                   

inappropriate.

                               II.

          Having  stated  my  disagreement  with  the  view  that

Doulamis' sex discrimination  claim is preempted  by the NLRA,  I

consider  what perhaps  may be  a  conceptually prior  issue, the

issue  of abstention.  By seeking an injunction against the state

proceedings, Chaulk  has effectively  asked the federal  court to

enjoin  the state courts from  deciding the Garmon  issue.  Thus,                                                            

the potentially dispositive question,  apart from whether  Garmon                                                                           

preemption is  appropriate, is whether this  federal court should
                                                  

not bear on this case, Title VII does, and Title  VII makes clear
that   Congress   intended  federal   and  state   regulation  of
discrimination  to overlap.   The  differences between  Brown and                                                                       
this case do not affect the central instruction of Brown:  that a                                                                  
federal court  must defer to  congressional intent in  making any
preemption analysis, even one  involving the NLRA and even  if it
is expressed in another federal statute.

                               -41-

bar  the state fair employment agency from hearing this claim and

so bar Massachusetts state courts  from deciding the Garmon issue                                                                     

themselves, or, to the contrary, abstain from decision  and allow

the state agency and  courts to proceed.  As  with the preemption

issue, this issue is difficult, but  on balance I would hold here

under Younger v.  Harris, 401  U.S. 37 (1971),  and its  progeny,                                  

that abstention is appropriate.

          Younger  prevents  interference   with  pending   state                           

administrative  proceedings if  they  are of  a judicial  nature,

implicate an  important state  interest, and provide  the federal

plaintiff an adequate opportunity to litigate  his constitutional

claim.  Ohio Civil Rights Commission v. Dayton Christian Schools,                                                                           

Inc.,  477 U.S.  619, 627  (1985).   Although Chaulk  claims that              

Younger abstention is a  principle of "discretionary  deference,"                 

the Supreme Court has  stated that where a case  falls within the

Younger parameters, a district court has no discretion to provide                 

injunctive relief  and must  abstain.  See  Colorado River  Water                                                                           

Conservation District  v. United States,  424 U.S. 800,  816 n.22                                                 

(1976) ("Where  a case is properly within  [the Younger] category                                                                 

of cases, there  is no discretion to  grant injunctive relief.");

see also Sun Refining &amp; Marketing  Co. v. Brennan, 921 F.2d  635,                                                           

639  (6th Cir. 1990) ("[U]nlike other forms of abstention, when a

case is properly within  the Younger category of cases,  there is                                              

no  discretion  on  the  part  of  the  federal  court  to  grant

injunctive  relief.");  Seneca-Cayuga  Tribe  v.  State  ex  rel.                                                                           

Thompson,  874 F.2d 709, 711 (10th Cir. 1989) (Younger abstention                                                                

                               -42-

not discretionary  once conditions are met,  absent extraordinary

circumstances that render a state  court unable to give litigants

a full and fair hearing on their federal claims).18

          There  is no  question that  the MCAD  proceedings were

ongoing at the time Chaulk's district court  complaint was filed,

see Bettencourt  v. Board of  Registration in Medicine,  904 F.2d                                                                

772, 777 (1st Cir. 1990) (in determining interference "the proper

point  of  reference is  the  date  plaintiff  filed his  federal

complaint"),  and that  the proceedings  are judicial  in nature.

See Dayton Christian Schools, 477 U.S. at 629 (finding Ohio Civil                                      

Rights  Commission proceedings sufficiently  judicial in nature).

The significant questions here are whether the state  interest in

deciding sex discrimination claims is important and whether there

will  be an adequate opportunity  for Chaulk to  raise the Garmon                                                                           

preemption question in the Massachusetts state forum.

          The  Supreme   Court  has   said  that   remedying  sex

discrimination  is  a sufficiently  important  state  interest to

trigger Younger.  See  Dayton Christian Schools, 477 U.S.  at 628                                                         

("We  have  no  doubt  that  the  elimination  of  prohibited sex

discrimination  is  a sufficiently  important  state interest  to

bring  the  present case  within the  ambit  of [Younger  and its                                                                  

progeny].").   Although Chaulk has suggested that there can be no

significant state interest in this case because  it is preempted,
                                                  

18   The majority quarrels with this proposition stating that the
Colorado  River case  was  discussing criminal  cases.   Colorado                                                                           
River,  however, was  discussing Younger  abstention and  Younger                                                                           
clearly applies to non-criminal state administrative proceedings.
See Dayton Christian Schools, 477 U.S. at 627 &amp; n.2.                                       

                               -43-

such an argument,  I believe,  is most likely  foreclosed by  New                                                                           

Orleans Public Service, Inc.  v. Council of City of  New Orleans,                                                                          

491 U.S. 350, 365 (1989) ("NOPSI").  In NOPSI the Court said that                                                       

in determining the importance of the state interest courts should

"not  look narrowly  to  its  interest  in  the  outcome  of  the

particular  case  --  which   could  arguably  be  offset  by   a

substantial  federal  interest in  the  opposite  outcome."   Id.                                                                           

Courts rather  must  look  to  the  "importance  of  the  generic

proceedings  to  the  State."     Id.  (citing  Dayton  Christian                                                                           

Schools).      As  Dayton   Christian   Schools   made  explicit,                                                         

Massachusetts has  a legitimate  and important state  interest in

preventing sex discrimination.  Thus the important state interest

prong of Younger is satisfied in this case.                          

          Where there is an important state interest, the Supreme

Court  has noted that a federal court should abstain unless state

law  clearly bars  the interposition  of the  federal plaintiff's

constitutional  claim.    Middlesex  County Ethics  Committee  v.                                                                       

Garden State Bar Ass'n, 457 U.S.  423, 432 (1982).  Here, we have                                

no  reason  to doubt  that  the Massachusetts  state  courts will

provide  Chaulk with  a full  and fair  opportunity to  raise the

Garmon  preemption   question.    Chaulk  raised  the  preemption                

argument before the MCAD  and will have a further  opportunity to

pursue  it before  the  Massachusetts appellate  courts.   Dayton                                                                           

Christian Schools,  477 U.S. at 629   ("[I]t is sufficient  . . .                           

that constitutional claims may  be raised in state-court judicial

review of the administrative proceeding.") (citation omitted).

                               -44-

          If federal  law barred  the Massachusetts  state courts

from deciding the Garmon  preemption question, then the "adequate                                  

opportunity" prong would not  be met.  Indeed such  a proposition

appears  to be at the heart of Chaulk's argument.  Chaulk argues:

"[W]here conduct is arguably protected or prohibited by the NLRA,

jurisdiction over  that conduct is preempted in the labor context

and is exclusively  federal.   The determination  of whether  the                                                                           

case arguably falls within the preempted field is also to be made                                                                           

by  the federal  courts,  not State  courts  or State  tribunals"                                                                          

(emphasis supplied).

          But that proposition is untenable and inconsistent with

the  Supreme  Court's case  law.   Although  state courts  may be

deprived  of jurisdiction to decide  a case once  it is preempted                                                          

under  Garmon, they are  not deprived  of jurisdiction  to decide                       

whether a case  is so  preempted.  State  courts have  concurrent                 

jurisdiction to decide federal preemption issues.   See Chick Kam                                                                           

Choo v. Exxon Corp., 486 U.S. 140, 149-50 (1988) ("[W]hen a state                             

proceeding presents  a federal  issue, even a  pre-emption issue,

the proper  course is  to seek  resolution of  that issue  by the

state court."); see also  Turnbow v. Pacific Mut. Life  Ins. Co.,                                                                          

934 F.2d 1100,  1103 (9th  Cir. 1991) (no  jurisdictional bar  to

state court  deciding ERISA preemption question);  Sun Refining &amp;                                                                           

Marketing  Co.  v. Brennan,  921 F.2d  635,  641 (6th  Cir. 1990)                                    

(discussing  possibility   of  Younger  abstention   question  in                                                

situation involving state action that was arguably subject to the

exclusive   jurisdiction  of   Occupational  Safety   and  Health

                               -45-

Administration  ("OSHA")  and  stating, "it  is  undisputed  that

concurrent jurisdiction exists in the Ohio state courts to decide

the federal pre-emption issue").

          Garmon  preemption is no  exception to  this principle.                          

Cf. International  Longshoremen's Ass'n,  AFL-CIO v.   Davis, 476                                                                      

U.S.  380,  393 (1985)  ("when a  claim  of Garmon  preemption is                                                            

raised  [in state court], it  must be considered  and resolved by                                                                           

the state court" (emphasis supplied)).  Because the Massachusetts                         

state courts  have concurrent  jurisdiction to decide  the Garmon                                                                           

preemption  issue, Chaulk  will have  an adequate  opportunity to

raise its  Garmon preemption  claim in the  Massachusetts courts,                           

and  thus the "adequate opportunity" prong of Younger is also met                                                               

here.

          Perhaps recognizing  that Younger applies to this case,                                                     

Chaulk  has  argued  that  preemption  cases  should  be  treated

differently than typical Younger abstention cases.   It says that                                          

"[t]he real  issue in this  case is whether a  doctrine of comity

should be applied in a  Garmon preemption case."  It  argues that                                        

treating this  case under Younger "confuses  two federal concepts                                           

which  are rooted in very different soil"; and that while Younger                                                                           

"is  predicated  upon  discretionary  deference  by  the  federal

government   to  fundamental  State  interests,"  preemption  "is

mandatory and  arises under  the Constitution,  specifically, the

Supremacy  Clause."    According  to  Chaulk  "[t]o  elevate  the

equitable doctrine of abstention over the Constitutional doctrine

of preemption would truly be to elevate form over substance."

                               -46-

          Whatever the merits of Chaulk's argument in theory, the

Supreme Court has  apparently rejected  it.  In  NOPSI the  Court                                                                

said  that preemption  issues  do not  involve a  greater federal

interest than other constitutional challenges:

            There  is no greater  federal interest in
            enforcing   the   supremacy  of   federal
            statutes than in enforcing  the supremacy
            of  explicit  constitutional  guarantees,
            and  constitutional  challenges to  state
            action,  no  less than  pre-emption-based
            challenges,   call   into  question   the
            legitimacy of the State's interest in its
            proceedings  reviewing or  enforcing that
            action.   Yet it  is clear that  the mere
            assertion of a substantial constitutional
            challenge to state  action will not alone
            compel    the    exercise   of    federal
            jurisdiction. . . .    [P]reemption-based
            challenges merit a similar focus . . . .

Id. at 365.  Thus, courts are to analyze Younger abstention cases                                                          

involving preemption claims no differently than any other Younger                                                                           

abstention  case, see Sun Refining,  921 F.2d at  639, and even a                                            

substantial  claim of  federal  preemption is  not sufficient  to

overcome Younger.  See NOPSI, 491 U.S. at 365-66.19                                      
                                                  

19  A distinction exists between preemption involving a choice of
forum and preemption involving a choice  of law.  Cf. Violette v.                                                                        
Smith &amp;  Nephew  Dyonics, Inc.,  62 F.3d  8, 11  (1st Cir.  1995)                                        
(choice  of  forum preemption  is  jurisdictional  and cannot  be
waived,  while choice  of law  is not  and may  be waived).   The
argument might  be made that  because Garmon  involves choice  of                                                      
forum preemption there  is a greater federal interest  to protect
than in a  case involving  choice of law  and that,  accordingly,
abstention here might not be  appropriate here even if abstention
for choice of law preemption would be.  NOPSI, however, says that                                                       
the  federal  interest is  not to  be  weighed against  the state
interest.  See  Sun Refining, 921 F.2d at 641.   Thus even if the                                      
federal interest in Garmon preemption is weightier than in choice                                    
of law preemption cases,  that consideration does not  affect the
Younger  inquiry;  abstention  is   appropriate  as  long  as  an                 
important state interest is identified and the other requirements
are  met.    See    Middlesex County,  457  U.S.  at  431-32; Sun                                                                           

                               -47-

          The exception to Younger  that provides that abstention                                            

may  be improper  where  the plaintiff  might suffer  irreparable

injury  absent  equitable  relief  is  not  applicable  here.   A

sufficient  risk  of  irreparable  injury  may  exist  where  the

challenged state statute is "flagrantly and patently violative of

express constitutional prohibitions. . . ."  Younger, 401 U.S. at                                                              

53-54.   But chapter  151B is hardly  flagrantly unconstitutional

and, given  the complexities  of the preemption  question, it  is

difficult  to  describe  the  MCAD's  actions  as  flagrantly  or

patently violative of the Garmon preemption principle.                                          

          Further, although the Supreme  Court in NOPSI left open                                                                 

the  question  of  whether  a  "facially  conclusive"  claim  for

preemption might fall within the exception to Younger, see NOPSI,                                                                          

491  U.S. at  367,  the preemption  claim  here is  not  facially

conclusive.    For  Chaulk's  preemption  claim  to  be  facially

conclusive the federal courts must be able to determine the state

action  is  preempted "without  further  factual  inquiry."   Id.                                                                           

Chaulk cannot meet this standard.

          The  MCAD has  not sought  directly to  regulate unfair

labor practices nor has  it questioned the authority of  the NLRB

to adjudicate the unfair  labor practices claim.  Cf.  NOPSI, 491                                                                      

U.S.  at 367.   It  has in  fact said  that "the  issue of  union

interference is  properly  left to  the provinces  of the  NLRB."

Neither has it challenged the  non-admission settlement agreement

that Chaulk has entered, nor does it appear  that the MCAD action
                                                  

Refining, 921 F.2d at 641.                      

                               -48-

will  undermine that agreement.20   Even if there  were reason to

doubt  whether   Doulamis  has   a  bona   fide  claim   for  sex

discrimination or whether the MCAD should adjudicate the dispute,

it would be impossible "conclusively [to] say [the MCAD] is wrong

without  further factual  inquiry  -- and  what requires  further

factual inquiry  can hardly  be deemed 'flagrantly'  unlawful for

purposes of  a threshold  abstention determination."   NOPSI, 491                                                                      

U.S. at 367.21 

          Finally, the fact that the union filed a complaint with

the NLRB before Doulamis filed her complaint before the MCAD does

not resolve the  matter.22   To begin with,  Chaulk never  raised

                                                  

20   There is nothing  in the record to  show that the  NLRB even
considered Doulamis' claims for sex discrimination in the context
of the unfair labor practice  charges.  Moreover, the  settlement
agreement itself "does not  preclude persons from filing charges,
the General Counsel from prosecuting complaints, or the Board and
the courts from finding violations  with respect to matters which                    
precede  the date of the approval of this Agreement regardless of
whether  such matters  are known  to the  General Counsel  or are
readily discoverable" (emphasis supplied). 

21  There may be  situations in which the preemption  claim could
be facially  conclusive and abstention would  not be appropriate.
For example,  this case  would  be viewed  quite differently  had
Doulamis alleged  before the MCAD that  the discrimination Chaulk
engaged in was simply  based on her potential affiliation  in the
union, as  opposed to her gender.   In such a  case, the question
whether the  claim was within  the exclusive jurisdiction  of the
NLRA would not turn on  deciding whether her claim was a  case of
artful  pleading.   No more  facts would  need be  determined and
under  such  circumstances  abstention  would  probably  not   be
appropriate.   Moreover,  were  the MCAD  to assert  jurisdiction
under such circumstances, there would be a good argument that the
MCAD was  behaving in flagrant disregard of the Garmon preemption                                                                
principle.     

22  Although  Doulamis' complaint  before the MCAD  was filed  on
December 1,  1993  the  proceedings  before  the  MCAD  began  on
November 23, 1993 when Doulamis underwent her intake interview.

                               -49-

such a  theory as  a basis to  prevent abstention.   Its  initial

brief, its  reply brief,  and the supplemental  letter memorandum

requested  by  the  panel at  oral  argument  are  devoid of  any

argument  that  abstention  is  inappropriate  because  the  NLRB

proceeding was  pending at the time of the MCAD complaint.  It is

therefore waived.  See Grella v. Salem Five Cent Savings Bank, 42                                                                       

F.3d 26, 36 (1st Cir. 1994).

          Moreover, there does not appear to be case law squarely

supporting  such a theory.   Indeed, such a  theory of abstention

appears to be at odds with the treatment of the issue in at least

one  other circuit.    See  Sun  Refining,  921  F.2d  at  639-42                                                   

(abstention  was appropriate  despite  claim that  the state  law

action violated  the exclusive  jurisdiction of OSHA  and despite

fact that  OSHA  action had  been  pending and  concluded  months

before the state action was brought).  As a matter of policy, the

existence  of  a  NLRB  action  at  the  time  a  parallel  state

proceeding  is filed  should not  control the  matter here.   The

NLRB, if it so chose, could have sought an injunction against the

state proceedings if it  thought the state proceedings conflicted

with its  exclusive jurisdiction.   NLRB  v. Nash-Finch  Co., 404                                                                      

U.S. 138,  142-44 (1971).23   The fact that  the NLRB did  not so
                                                  

23  Even the cases cited for the proposition that a federal court
may enjoin  a  state court's  intrusion into  a federal  agency's
exclusive jurisdiction do not stand for such a broad proposition.
In the only  labor case  cited, American Federation  of Labor  v.                                                                       
Watson, 327 U.S. 582 (1946), the court specifically said that for                
such an injunction to issue there must be  an immediate threat of
irreparable  injury, such  as  an "imminent  threat to  an entire
system of collective  bargaining."   Id. at 595.   No  comparable                                                  
threat exists here.  In fact, in Watson the Court explicitly said                                                 

                               -50-

move speaks volumes.

          I respectfully dissent.

                                                  

that  the  threat of  multiple prosecutions  under the  state law
would not be  sufficient to justify an injunction.   See id.  The                                                                      
Court also abstained under the doctrine of Railroad Commission of                                                                           
Texas v. Pullman Co., 312 U.S. 496 (1941).  See id. at 599.                                                                 

                               -51-
