
USCA1 Opinion

	




                            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               ________________            ______________     _____________          & 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   &          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  &          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.  & 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 &                       ______                      __________     _________          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 & 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                                            __           ___ ______________          &  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&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&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 & 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 & 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 & 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 & 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 & 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 & 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 &                                                             ______________          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 &  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-
