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

Harshbarger, Attorney General of

General,

with

whom

Scott
_____

Massachusetts, was on brief for

___________
appellee

Massachusetts

Commission

Katherine
McClure
____________________

on

Doulamis/Sullivan

International

and

brief

Against
for

Discrimination;

appellees

Association

of

Petrina
EMTs

Paramedics, NAGE and AFL-CIO.

____________________

November 27, 1995

____________________

Of the District of Puerto Rico, sitting by designation.

&

____________________

-2-

CASELLAS, District Judge.

CASELLAS, District Judge.
______________

Services,

Inc. ("Chaulk")

Plaintiff-appellant

originally

brought

Chaulk

this action

for

declaratory judgment, preliminary and permanent injunctive relief

against

the

Massachusetts

("MCAD")("the

("Doulamis")

Commission

Commission"),

and

the

Petrina

International

Paramedics, NAGE, AFL-CIO ("the

Against

Discrimination

Doulamis/Sullivan

Association

Union"), to prevent

of

EMTs

&

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.
______

preemption

The district court abstained from deciding Chaulk's

claim, citing Younger v.

_______

Harris, 401 U.S. 37 (1971),

______

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

_____________________________
_______________________________

477 U.S.

MCAD,
____

695

619 (1986) and

F.

Supp.

Brotherhood of Locomotive Engineers v.

____________________________________

1321

dismissed Chaulk's complaint.

(D. Mass.

1988),

consequently

We vacate the judgment

remand the case to the district court.

I.
I.

and

STATEMENT OF THE CASE

STATEMENT OF THE CASE
_____________________

below and

A.
A.

Facts
Facts

In the middle of 1993, the International Association of

EMTs and

Paramedics, NAGE,

campaign

at Chaulk.

AFL-CIO, began a

Doulamis became

sometime during the fall

union organization

involved in

of 1993, when she

the campaign

and Eric Burgess,

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

parent

company

calling for

the organization

-2-

of

a union.

On

November

10,

1993,

Chaulk's

Gilmore, vice-president,

CEO Nicholas

as part

O'Neil

of their own

and

Joseph

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

labor practice charges

Labor Relations

coerced

her

meeting, the Union

on November

29, 1993

Board ("NLRB") against Chaulk,

and intimidated

questioning

of this

Doulamis, a

regarding

union

with the

retaliation for those union activities,

National

claiming that it

known union

activities

filed unfair

and

organizer, by

threatening

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

alleging specific violations of

and

charging that

Chaulk

a complaint against Chaulk

8(a)(1) and (3) of

had interfered

the NLRA,

with, restrained

and

coerced several employees, including Doulamis, in the exercise of

rights guaranteed by

of the Act.

the complaint alleged that

With respect

to Doulamis,

on November 29, 1993 Chaulk

issued a

____________________

The

Union filed

charges against
with
refer

several

additional unfair

Chaulk stemming

from

labor

its alleged

interference

the protected rights of numerous other employees.

in

particular

parties, involve
Doulamis.

only

charges

Furthermore,

to those
of unlawful

while

which,

according

conduct directed

Doulamis

is not

practice

named

Here, we
to

the

against
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

future 401(K) meetings

her with discipline if

held by

she attended any

Chaulk with its

employees.

In

addition, the complaint

charged that on December 2, 1993, Chaulk

suspended

of the

the coauthor

pro-union letter,

Eric Burgess.

According

to

the

complaint,

conduct

several

of

arising

out of union or other protected concerted activity.

Complaint and

that these

employees, had

Notice of Hearing at

employees formed, joined

otherwise

engaged in

Doulamis,

this

it mistakenly

fellow

that

in

because

her

believed

Chaulk engaged

concerted

engaged

s 7-8.

It

together

in

misconduct

See
___

is also alleged

and assisted the

activities, and

with

that

Union and

Chaulk's

conduct was a deliberate attempt to discourage the employees from

engaging in

these activities,

and (1) of the Act.

in violation of

sections 8(a)(3)

See Complaint and Notice of Hearing at

___

s 7-

10.

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

Burgess;

files any

the written

reference to

warnings

set forth

the transfer

in the

of Eric

complaints of

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

and Jean Taubert; the suspensions

of Eric Burgess, Chris

Jim Taubert,

Jean Taubert, Gary Winitzer,

Edwards

James

and

Wilkerson,

John

McLaughlin;

Borden and

and the

McLaughlin.

-4-

Adler,

Michael Cook, Kathryn

terminations

In addition,

of

Fran

Chaulk

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

Meanwhile,

already

on December

filed its first charge

complaint with the MCAD

victim

of

unlawful

1, 1993,

after the

with the NLRB,

Union had

Doulamis filed a

against Chaulk, claiming she had

sex

discrimination.

complained of being harassed

because of her gender, in

Specifically,

been a

she

about her union activity, allegedly

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,

that it was preempted by federal law.

on the grounds

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

dispute

in

to address the

order

discrimination.

to

The

resolve

merits of

the

Commission then

the underlying labor

allegations

promptly issued

interrogatories to Chaulk, requesting detailed

all known union organizers, their

any

significant acts

including

copies

of

of

any

of

gender

a set

of

information about

role in organizing efforts and

union organizing

known to

communications

between

appellant,

Chaulk

and

Doulamis relative to the union organization effort.

B.
B.

Proceedings Below
Proceedings Below

The

present

District Court for the

1994, seeking a

action was

filed

in

the United

States

District of Massachusetts on December

declaratory judgment

as well

as an

8,

injunction

barring the

continued prosecution of

Doulamis' complaint before

-5-

the MCAD.

state

Chaulk

authority

significantly

claimed

over

her

that the

charge

Commission's assertion

directly

threatened

interfered with the jurisdiction of

noted above, the

the NLRB.

of

and

As

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.
II.

ANALYSIS
ANALYSIS
________

A.Preemption
A.Preemption

Relying on the doctrine

in

San Diego Building Trades

__________________________

appellant argues

Commission's

v. Garmon,
______

that the district

motion

abstention and that

to

of preemption first enunciated

dismiss

359 U.S.

court erred in

on

the

236 (1959),

allowing the

grounds

of

Younger
_______

it should have decided the preemption issue.

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

_______________
_______

Cir. 1994), Chaulk asserts

tribunal is acting

there is no

that when it is clear

beyond the

principle of

lawful limits

comity that is

that the state

of its

served by

authority,

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

sex discrimination

declare that appellee's

before the Commission is

charge of

indeed preempted by

federal law.

We

called

begin by delineating

Garmon preemption
______

doctrine.

the present

scope of

The Supreme Court

Garmon that when an activity is arguably subject to

______

the

National

Labor Relations

Act, the

-6-

states

7 or

as well

the so

held in

8 of

as the

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.
__

enacted comprehensive

When Congress enacted the NLRA, it

procedural rules

administer

this specially

result was

a complex

designed

and created the

NLRB to

regulatory structure.

and interrelated

scheme

of federal

The

law,

remedies and administration designed to achieve uniformity in our

national

labor

Telephone Co.
_____________

policy.

Garmon,
______

359

U.S.

at

v. New York Dept. of Labor, 440

__________________________

242; New York

_________

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

entrusted

order to

achieve the desired

the interpretation and

uniformity, Congress

enforcement of

the NLRA

to a

centralized administrative agency, armed with its own procedures,

and

equipped

experience.

scheme

was

with

its

specialized

See Garmon, 359

___ ______

designed

to

incompatible adjudications

knowledge

U.S. at 242.

avoid the

cumulative

This administrative

danger

such as would

and

of

conflicting

or

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.

____________________________

Garmon rule is therefore

______

of

The

intended to preclude state interference

with the NLRB's interpretation

scheme

485, 490-91 (1953).

and enforcement of the integrated

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
______

the NLRB's primary jurisdiction.

admits of some

exceptions to

For instance, where the conduct

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

the

states

Garmon,
______

are

359 U.S.

preempted where

deeply rooted in

absence

not

of

precluded from

at

the

243.

regulated

Similarly,

state

conduct

touches

local feeling and

compelling

regulating

the

activity.

is

not

interests

"so

responsibility that, in

the

congressional

action

direction,

courts cannot

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

Id.2
__

When

called

to

determine

whether

these

apply, courts must balance the state's interest in

effects of

the challenged conduct against

exceptions

remedying the

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,

State of Ill. Dept. of Emp. Sec.,

__________________________________

1993).

498-499 (1983);

988 F.2d 735,

NLRB v.
____

739 (7th Cir.

In doing so, we intentionally focus on the conduct at the

____________________

Courts

doctrine

have recognized

where

Congress

has

third

exception

expressly

carved

exception to the NLRB's primary jurisdiction.

Comm-Tract Corporation, No.
_______________________

95-1295, slip

See
___
op.

such

an

Tamburello v.
__________
at 6

(1967);

Brennan v. Chestnut, 973 F.2d 644, 646 (8th Cir. 1992)).

_______
________

jurisdiction

not
for

made
claims

context of an unfair
Local Union, 838 F.2d
___________

an

exception

alleging

labor practice.

386 U.S.

(1st Cir.

2, 1995)

has

v. Sipes,
_____

out

Garmon
______

October

Congress

(citing Vaca
____

to the

to

sex

the

171, 179-80

NLRB's

discrimination

primary
in

the

See Jones v. Truck Drivers

___ _____
_____________

at 861 (sexual discrimination is

a breach

of duty of

fair representation and

NLRA); NLRB v.
____
This

Local 106,
_________

exception therefore

within scope of

520 F.2d 693

does not

(6th Cir.

apply to

8 of

the

1975)(same).

the facts

in this

case.

-8-

root of

this controversy,

with Doulamis'

union activities,

title of sex discrimination

the MCAD.

That

namely Chaulk's

alleged interference

as opposed to

the descriptive

given to her cause of

action before

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

the

standards

that

is

proper

focus

Amalgamated Ass'n of St., E.R. & M. C. Emp. v.

______________________________________________

U.S. 274, 292 (1971).

See also,
___ ____

of

concern."

Lockridge, 403
_________

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

activities

of

incidents

of

as a union organizer.

the factual basis

interference

with

her

union

The very same conduct provides

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

Where, as here,

8 of the

appropriate

with involve her

union activity.

the case involves conduct arguably prohibited by

Act, the NLRB

remedy

has broad authority

for wronged

employees.3

to determine the

"In fact,

since

____________________

MCAD presses the argument that gender-based

not
NLRA.

even within
According

the realm

of

discrimination is

prohibited activities

under the

to MCAD, the scope of prohibited discrimination

-9-

remedies

form

regulation,

from

Garmon,
______

Fries, 966 F.2d

_____

claims

v.

the

NLRB

359 U.S.

of

any

integrated

only accentuates

at 247;

with union

concern to the Act.

scheme

of

a remedy here which has

the

Richardson v.
__________

153, 157 (4th Cir. 1992).

of interference

peripheral

remedy

ingredient

to allow the state to grant

been withheld

conflict."

an

danger

of

Kruchko &
_________

Board authority over

activities is not

merely of

Rather, the Board's authority to

such practices is central to its purpose.

Comm-Tract Corporation, No. 95-1295,

______________________

See Tamburello
___ __________

slip op. at

9 n.5 (1st

Cir. October 2, 1995).

Moreover,

Chaulk's conduct

the fact that

the Union

an unfair labor

clearly considered

practice, and

that the

Board

entertained

such charges, only buttresses the Court's conclusion

that

conduct

said

is

not

only

prohibited

under section 8(a) of

the

real

very

danger

of

"arguably",

the NLRA.

interference

but

obviously

It also highlights

with

the

NLRB's

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

which

in this

pledged, among

case led

to the

other things,

not

agreement through

to engage

in the

which Chaulk

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

activities or

is

limited

membership.

successfully that

sexual

to

discrimination

Still, the

argument

based

has been

discrimination constitutes

labor practice under

8 of the NLRA.

Local Union, 838 F.2d

___________

at 861 (sexual discrimination is

of

duty of fair

on union

an

made

unfair

See Jones v. Truck Drivers

___ _____
_____________

representation and within

scope of

a breach

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

in the first

place, upon

interest in protecting its

In

"local interests" exception hinges,

the existence of

a significant

state

citizens from the challenged conduct.

second place, the controversy which could be presented to the

state court must

be different

presented to the NLRB.

from that which

Sears, Roebuck & Co. v.

____________________

Dist. Council of Carpenters, 436

____________________________

could have

been

San Diego County

________________

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

NLRB.4

Sears, 436
_____

that which could have been presented to the

U.S. at 197.

The Court reasoned that it

is

only

in

the

former

situation

that

state's

exercise

of

jurisdiction necessarily involves a risk of interference with the

unfair

labor practice jurisdiction of the Board which the Garmon

______

____________________

We note that

from the

Sears is not
_____

instant case in at

that case, the

Court was

party seeking relief

the

entirely on point, as

least one fundamental respect.

presented with a

in the state

Board's jurisdiction

and the

may not

have a

jurisdiction

party that

for a

preempted

dispute might eventually be

reasoned

that preemption

party has a reasonable

hearing on
without

was justified

The

any

Id.
__

Here, of

claims if

assurance

only when

state

that

the

The Court

an aggrieved

induce his adversary

course, there is no

Court

case, Sears

opportunity either to invoke the

himself or else to

Union

its

the

right to

brought before the NLRB.

jurisdiction
at 201.

to do so.

In

to invoke

had the

in the circumstances of that

chance

were

situation where

forum had no right

invoke the Board's jurisdiction had failed

expressed concern that

it differs

Board's

to do so.

such concern, as the

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.
__

Commonwealth

has a

protecting

employment.

Court

of

its

citizens

Following

in Sears,
_____

before the

Massachusetts

we

against

We assume arguendo that the

________

significant

sex discrimination

the guidelines set

therefore examine

state forum would

interest

forth by the

whether the

indeed be the

in

same as

in

their

Supreme

controversy

that which

could be brought before the NLRB.

In

learning

this regard,

of

activities as

Chaulk's

it is

alleged

Id.
__

telling

that the

interference

with

a union organizer, promptly filed

dispute, subject

part,

the

Chaulk's

basis

NLRB

NLRB's primary

received

conduct--the same

for

of

characterizing the controversy

to the

Doulamis'

the

allegations

that would

discrimination

8 of the

as a

jurisdiction.

Union's

conduct

Doulamis'

an unfair labor

practice charge on her behalf, claiming violations

Act--thereby clearly

Union, upon

claim

labor

For

regarding

later form

before

its

the

the

MCAD--

investigated them, proceeded then to issue a Complaint and Notice

of

not

Hearing, and eventually settled the matter.

case

where the

NLRB

declined

to

Plainly, this is

exercise its

lawful

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

exercise of jurisdiction remains a matter of speculation.

contrary, the Board

such

jurisdiction

in this case

and bring

moved aggressively to

the matter

to

On the

acquire

a full

and speedy

own pleadings

before the

resolution.

Furthermore,

Commission

even Doulamis'

couch her claims in

terms of a

-12-

labor dispute within

the NLRB's primary jurisdiction.

harassment "about

have

[her] union activities."

been "intimidated by Mr. O'Neil

activity" and

"accused of

union activity."

Chaulk,

if adequately

constitute

under

7 of the

the Act.

conduct

here at

an

She also

above, such

established

claims to

about involvement in union

distracting the other

As noted

would

of

Her complaint accuses Chaulk of

employees with

conduct on the

through competent

undue interference

with

evidence,

Doulamis' rights

NLRA and consequently a violation of

The application

issue only

of

part of

8(a)(1)

additional remedies

invites conflict.

As

to

the

the Supreme

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

______

be,

indeed is

designed

to be,

potent method

of

governing

conduct and controlling policy."

& Co., 436 U.S. at

______

Id. at 247.
__

See Sears, Roebuck

___ ______________

193-94 ("[T]he pertinent

inquiry is whether

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

precisely the same conduct.")

above,

(citations omitted).

As discussed

Doulamis' claim of sex discrimination is founded upon the

identical facts

practices

which provided

charge

Accordingly,

brought

under the

the basis

on

her

for the

behalf

Garmon rationale,
______

by

unfair labor

the

her claim

Union.

before the

Commission is expressly preempted.

Moreover, as

issued

by

the

MCAD in

prosecution of Doulamis'

pointed out by Chaulk,

the

course

of

the interrogatory

the investigation

case belies the Commission's

that it need not delve into the labor

and

assertion

aspects of the controversy

in order to dispose of her gender discrimination claims.

Rather,

-13-

the

interrogatory

ordinarily

is further

considered

jurisdiction

to

proof

be

that issues

within

the

of

NLRB's

labor law

primary

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

MCAD

organizers.

become embroiled

Such a finding

in a factual

what constitutes union activity, a

reserved to the jurisdiction

the

Commission

were allowed

and legal

apply

the

More

entertain

sexual discrimination, there is the

incorrectly

the

determination of

task which has been expressly

of the NLRB.

to

requires that

Doulamis' claim

potential risk that it

substantive

controversies laid out by Congress in

importantly, if

rules

the NLRA.

governing

of

will

labor

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.

MCAD and that resolved by the

respect,

and

jurisdiction

the

risk

is obvious and

of

Since the controversy before the

NLRB are the same in a fundamental

interference

with

substantial, we hold

-14-

the

Board's

that the MCAD

has

no

jurisdiction to

entertain

discrimination based on her

her union activities.

Doulamis'

charge of

sexual

employer's alleged interference with

International Union of Operating Engineers

__________________________________________

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

_____

B.Abstention
B.Abstention

We turn now to

in

this appeal-whether

under the

(1971),

enjoin

unusual

what is in essence the

the district

Younger doctrine.
_______

In

the Supreme Court held

a pending

court erred

an

in abstaining

Younger v. Harris, 401

_______
______

that a federal

state criminal proceeding

situation that

threshold issue

injunction is

U.S. 37

court should not

except in

the very

necessary to

prevent

great

and immediate irreparable injury.

proposition that

for

principles of comity require

state functions, a recognition

country

"a proper respect

of the fact

that the entire

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

a continuance of

fare

Younger stands for the

_______

the belief

best if the States are

functions in

that the

will

left free to perform their separate

their separate ways."

since applied its

National Government

Id. at
__

reasoning in Younger
_______

44.

The

Court has

to civil proceedings

in

____________________

The

issue

dissent devotes
of

remedies.

whether Title

VII

and

the

The Supreme Court has made

state proceeding is

claimed to

Garmon, the issue is a

______
law

a considerable

question.

number of pages
NLRA provide

to the

concurrent

clear however, that when a

be preempted by

the NLRA

choice-of-forum rather than a

See International Longshoremen's

under

choice-of-

Association v.

___ _________________________________________
Davis, 476
_____
whether

the

dispute."
then

U.S. 380,

state

State

Id.
__

391 (1986).
or

the

Board

If--as here--there

jurisdiction

is

As such,
has

"it is

a question

jurisdiction

over

is preemption under

extinguished.

Id.
__

See
___

the

Garmon,
______

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

Schools, 477
_______

Ohio Civil Rights Comm'n

___________________________

U.S.

619 (1986),

announced in Younger were

_______

Dayton Christian
_________________

the principles

of comity

first

made extensive to state administrative

proceedings.

As a result,

involved, (2)

in an

proceeding, a

federal court

jurisdiction

v.

where (1) vital

state interests are

ongoing state judicial

(or administrative)

should abstain from

exercising its

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
____________
_____________________

Moore v. Sims, 442

_____
____

U.S. 415 (1979).

(1982);

"The pertinent inquiry

is

whether state proceedings afford an adequate opportunity to raise

the constitutional claims."

The dissent

discretionary

court

asserts that,

rather than a

deference, Younger abstention

_______

to abstain

parameters.

Middlesex, supra.
_________

whenever a

To the

case falls

extent it

principle of

requires a district
________

within the

relies

on the

doctrine's

Supreme Court's

decision in Colorado River Water Conservation District v. United

___________________________________________
______

States, 424 U.S.

______

however,

800, 816 n.22 as support for this blanket rule,

we respectfully differ.

dissent

relies clearly refers

federal

jurisdiction

restraining

state

has

criminal
________

The cited passage on which the

to that

been

category of

invoked

proceedings.

for

And

the

even

cases where

purpose

for

of

that

category

of cases, the Supreme Court makes clear that abstention

-16-

is only

appropriate absent bad faith, harassment,

invalid state

statute.

Id. at
__

strongly reaffirmed the basic

816.

or a patently

In fact, Colorado River

_______________

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

jurisdiction,
narrow

is

an

exception

to

district

court

controversy
of

can

doctrine

would

be

to

of

a
a

before

the
the

serve
interest.

equity that a

it.

to decide
under

this

exceptional
order

to the

exercise its
________ ___

and

adjudicate

in

repair

its

duty

justified

where

clearly

doctrine of

to

to

only

countervailing

should

the

the obligation

circumstances
parties

of

extraordinary

properly

Abdication
cases

exercise

to

state
an

the
court

important

It was never a
federal court

judicial discretion
________ __________

dismiss a suit merely because a State

court could entertain it."

Colorado River, 424 U.S.

______________

omitted).

at 813-14 (emphasis supplied; citations

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

disagree.

First,

the

principles

the procedural

of

Younger
_______

abstention.

posture of this

We

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

ongoing

state proceeding begun before the federal action.

thought that

that

out of respect for an

this procedural

can arise when the

federal--overlaps.

mechanism forestalls the

business of the

But the notion

-17-

It is

friction

two systems--state and

of comity, which

to a great

extent

underlies

accommodate

the

the

Younger
_______

legitimate

national governments.

doctrine

interests

Younger,
_______

of

abstention,

of both
____

the

state

must

and

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,

complaint for declaratory and injunctive relief

United States

In doing so

District Court for the

however, the court

when

Chaulk's

was filed in the

District of Massachusetts.

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

_____

the

NLRB at

the time

Commission.

In

of the

addition,

filing of

pending before

her action

shortly after

Doulamis

before the

filed

her

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

continued to exercise its jurisdiction over these claims.

Federal

state agencies

state

courts

seek to

and withhold

remedies

are

avoid needless

relief by

available

way of

and adequate.

conflict with

injunction where

Alabama Public
_______________

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

__________________
_____________________

But where Congress, acting

has vested a

within its constitutional

federal agency with

authority,

exclusive jurisdiction over

subject

matter and the

conflict

of functions,

proceeding

in

order to

Federation of Labor
____________________

intrusion of a

the federal

state would result

court may enjoin

the state

federal right.

American
________

preserve the

v. Watson,
______

327

in a

U.S. 582,

593-95

(1946);

(1944);

Public
______

-18-

Bowles
______

v.

Willingham,
__________

321

U.S.

503,

510-11

Utilities Commission of Ohio v.

_____________________________

United Fuel Gas Co., 317

____________________

U.S.

456, 468-70 (1943).

This

Associates, LP
_______________

Jersey, 44
______

case

v.

is

similar

to

Freehold Cogeneration
______________________

Board of Regulatory Commissioners of New

____________________________________________

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

previously

approved power

purchase

agreement

between Freehold

and Jersey

Central Power

and Light

Company ("JCP&L"), a

sought an

order

New Jersey public

enjoining the

ongoing

utility.

Freehold

BRC proceedings.

also

The

district court dismissed for lack of subject matter jurisdiction.

On appeal,

one of

federal court

the arguments

should abstain

raised by

JCP&L was

from resolving the

that 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

federal

statutory

development
sources.

of

with

carrying

out a

scheme promoting
alternative

the

energy

The alleged intrusive action is

not

by the

the

contrary,

agency.

is

federal government,
by

We conclude

state

but, on

regulatory

that abstention is

not appropriate in this case and does not

warrant any extended discussion.

Freehold Cogeneration, 44 F.3d at

_____________________

are

1187 n.6.

As in Freehold,
________

we

concerned here with carrying out a federal statutory scheme,

-19-

in

this case one promoting the development of a uniform national

labor policy.

government,

The alleged intrusive action is not by the federal

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

claims

NLRB through which all unfair

were resolved,

conditions

subject to

labor practice

Chaulk's compliance

with the

set forth therein, only to be faced with the prospect

of having to

defend its actions once

state forum.

Such an expansive interpretation of

doctrine

would

litigation,

have

with

the

the

effect

resultant

administrative resources, as well

again, this time before

of

the abstention

encouraging

waste

of

duplicative

judicial

and

as the danger to federal-state

relations that could result from conflicting adjudications.

Under these circumstances, where a

primary

said

jurisdiction over the

jurisdiction,

mentioned

principles

it

would

of

federal agency with

controversy has already exercised

be inconsistent

comity

and

equal

with

respect

the

for

above

the

interests

of both the federal and state government for a federal

court

abstain on

to

properly

before

administrative

underway.

it,

action

Younger
_______

in

grounds

order

filed after
_____

to

from

give

deciding

way

the federal

to

claim

state

proceedings are

Put simply, comity works both ways.

______ _____ ____ ____

The

Commission nevertheless

-20-

urges

us to

extend

the

application of Younger
_______

this

case.

To

and its progeny

this end, MCAD

to the circumstances

argues that the

of

facts before us

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

in

Middlesex,
_________

457 U.S.

analysis of the

conclusion.

at

432.

As

it is

however,

case within this framework leads us

Abstention was improper in this case.

even an

to the same

We explain.

A number of courts have held that Younger abstention is

_______

inappropriate

where

conclusive" or

"readily apparent", because no

interests are served

claim

preemption

is

"facially

significant state

when it is clear that the state tribunal is

acting beyond the

lawful limits

Inc.
____

35

v. Barbosa,
_______

of

F.3d 1355,

of its authority.

1365-66

(9th Cir.

Bud Antle,
___________

1994),

as

amended

by,

45 F.3d

Construction, Inc.
___________________

1261,

v.

1272-73 (9th

Aubry,
_____

940

F.2d

Cir.

1994); Gartrell
________

437,

441

(9th

Cir.

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

____________________________
_____

(9th Cir. 1984);

F.2d

1532,

1537

National R.R. Passenger Corp. v. Florida,

______________________________
_______

n.12

(11th

Cir.

1991)(citing

Department of Professional Registration,

_______________________________________

Cir.

1983));

Commission,
__________

Southwestern Bell Tel. v.

________________________

824 F.2d 672, 673

Baggett
_______

929

v.

717 F.2d 521, 524 (11th

Ark. Public Service

_____________________

(8th Cir. 1987);

Kentucky W. Va.
_______________

Gas Co. v. Pennsylvania Pub. Util. Comm'n, 791

________
_______________________________

F.2d 1111, 1115

(3d Cir. 1986).

acting

beyond its

Chaulk asserts that the Commission

jurisdictional boundaries

is patently

and therefore,

no

principle

of

comity

precluded

the

district

entertaining its claim of preemption on the merits.

the

court

from

In response,

Commission cites the Supreme Court's decision in New Orleans

___________

-21-

Public Service, Inc.

____________________

U.S.

350 (1989)

assertion

of

v. Council of the City of New Orleans, 491

___________________________________

("NOPSI")

a substantial

for the

proposition

constitutional

that the

challenge

mere

to state

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

not alone compel the exercise of federal

the merits of MCAD's

jurisdiction.

Whatever

assertion however, even the NOPSI

_____

decision

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

preemption might

render abstention

Consequently, we

examine the merits of

abstention is also

inappropriate.

Id.
__

at 367.

Chaulk's contention that

inappropriate because

preemption is

readily

apparent in this context.

We

have

explained

Doulamis'

claims

incidents

of interference with
____

organizer.
_________

before

the

above

the

Commission.

particularities

She

complains

her union activities

___ _____ __________

of

of

as a union
_____

We have observed that the very same conduct provides

the factual basis for

by the

Union on her behalf.

that the

notice

8(a)(3)

the unfair labor practice

NLRB incorporated

of hearing

of

the

We have also

these charges

claiming violations

NLRA.

As

we

have

charges brought

highlighted the fact

into a

complaint and

to sections

8(a)(1) and

noted,

claims

her

fundamentally grounded in an assertion that the rights

are

which her

employer interfered with involve her union activity.

_____ ________

Under these

state

circumstances, were we to

allow Doulamis'

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

unfair labor

Similarly

arbiter of labor disputes.

practices which could not

aggrieved individuals

bypass the NLRB

motives

to

the

belief,

etc.),

relevant

thereby

be similarly repackaged.

could

merely by ascribing

Indeed, there are few

use such

a myriad of

conduct (i.e.

creating

system

adjudication parallel to the NLRB, leaving

courts

to

grapple

piecemeal

with

age,

an opening

discriminatory

race,

of

to

labor

religious

dispute

the state and federal

issues

Congress

intended

primarily for NLRB resolution.

Faced with this

that

particular factual

scenario, we

find

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

was

inappropriate

discretion when it

NLRA.

and

Accordingly, we hold

that

the

district

that abstention

court

abused

dismissed Chaulk's complaint on the

its

basis of

Younger abstention.
_______

III.
III.

In sum, pursuant to

CONCLUSION
CONCLUSION
__________

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

such

an

abdication of

federal functions weighed against

federal

jurisdiction

over the

present

-23-

controversy.

Accordingly,

Chaulk is

entitled

to

injunctive

relief, consistent with this opinion.

Finally,

Eleventh

we

with

regard

Amendment bars Chaulk's

point

out that

Eleventh Amendment

the Supreme

does not

to

MCAD's

argument

that

the

claims against the Commission,

Court

preclude

has recognized

that the

properly pleaded

actions

against state officials when the relief sought is prospective and

equitable in

Will
____

We

nature.

See Ex Parte Young, 209 U.S.

___ _______________

123 (1908);

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

___________________________________

therefore

remand

the

reverse the

case,

so

that

judgment

Chaulk

of the

may

district

address

any

court and

pleading

deficiencies that currently preclude the continued prosecution of

its petition for relief.

Reversed and remanded.

_____________________

LYNCH, Circuit Judge, dissenting.

LYNCH, Circuit Judge, dissenting.
_____________

clearly expressed

statutes

the

its intent to allow

to operate in areas such

National

Labor

Because Congress has

state anti-discrimination

as this that may overlap with

Relations

Act

("NLRA"),

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

the federal

Commission

courts are being

Against

asked to enjoin

Discrimination

ongoing gender discrimination action

plainly

has

appropriate.

jurisdiction,

("MCAD")

Petrina

Because

the Massachusetts

from

hearing

an

over which the state agency

believe

that

abstention

is

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

Title VII,

that

claims

MCAD

state

light of the

42 U.S.C.A.

clear congressional mandate

2000e to e-17 (West 1994 & Supp. 1995),

anti-discrimination

statutes

for discrimination coextensive

claim coexists

labor laws.

under

with and

The employer's

is not

have

authority

over

with Title VII, Doulamis'

displaced by

defense here presents

the federal

no "facially

conclusive"

Service, Inc.
_____________

367 (1989).

courts

have

claim

for

See
___

New Orleans Public

____________________

v. Council of City of New Orleans, 491

_______________________________

U.S. 350,

Garmon preemption is a question over which the state

______

concurrent jurisdiction

("Chaulk") will have a

question

preemption.

and Chaulk

Services, Inc.

full and fair opportunity to

to the Massachusetts courts.

present the

In my view, abstention is

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

_______
______

-25-

I.

Garmon
______

subject to

federal

National

says

or

that

"[w]hen

8 of the

courts must

defer to

Labor Relations Board

an

activity

is

[NLRA], the States as well

the exclusive

competence

["NLRB"] if the

absolute.

conduct

245.6

Garmon
______

There is

at issue

also says

no need

is of

that

to defer

"peripheral concern"

of the

Garmon, 359
______

this principle

to

as the

danger of state

interference with national policy is to be averted."

U.S. at

arguably

the NLRB

is

not

where the

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

"interests so

that,

in

deeply rooted in local

the

absence of

feeling and responsibility

compelling

congressional

[courts cannot] infer that Congress [has]

the

power to act."

statute touches

direction,

deprived the States of

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

peripheral concern to

Commission,
__________

27 Wis.2d

(1978)

(employment

discrimination

the NLRA); Walker Mfg. Co. v.

________________

669,

681 (1965)

of

Industrial
__________

(age discrimination

of

peripheral

concern

to

Labor

Management

Relations

Act).

____________________

Sex discrimination

and

so

it

protected" by

is not

is not specifically addressed in

"clearly

prohibited"

by

or

the NLRA

"clearly

7 of the NLRA.

-26-

Originally enacted in 1946, the Massachusetts anti-discrimination

statute,

years

Mass. Gen.

older than

L. ch.

Title

VII.

151B,

See
___

1-10 (1994),

1946 Mass.

Acts

is eighteen

368.

It

regulates

conduct

in employment

in

Commonwealth's interest in ensuring

from particular

less

order

to

codes

or fire

least

as weighty

of Massachusetts'

regulations.

as the

out

It represents no

police power

The interests

interests sought

than building

it protects

to be

are at

vindicated in

actions the Supreme Court has specifically held not preempted

Garmon.
______

of

See Belknap, Inc. v. Hale, 463 U.S. 491

___ ______________
____

contract

and

the

that its workplaces are free

categories of discrimination.

an exercise

carry

misrepresentation

actions

by

(1983) (breach

by

replacement

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

______
_____________________________________________

of America, Local 25,

_______________________

emotional

distress);

430

Linn
____

U.S.

v.

290

(1977)

(infliction

of

United Plant Guard Workers of

________________________________

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

__________________

That chapter 151B

local feeling

majority

touches interests

and responsibility is

asserts

that

Doulamis'

discrimination claim, describing

of "artful[]

establishes

pleading."

that

With

Doulamis'

deeply rooted

not disputed.

claim

is

not

Doulamis' claim as

deference, I

claim

is

Rather, the

really

a sex

the product

believe the

clearly

in

one

record

for

sex

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

____________________

Doulamis' claim cannot

be preempted simply

arises from a labor dispute.

because the case

The Supreme Court has squarely held

that Garmon preemption does not turn on whether a claim arises in

______
the

context of

should the

a labor

fact that

dispute.

Linn, 383
____

defamation arises

-27-

U.S. at

during a labor

63 ("Nor

dispute

On the facts

before the MCAD for

as alleged, Doulamis

has stated a

sex discrimination under chapter 151B.

asserts, inter alia:

_____ ____

On

November 10,

about my
reason

1993,

union activity.
is because

I am

was
I

harassed

believe the

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 . . . .

claim

She

I believe

that I am

being single[d] out

by the Respondent because

There

are

numerous

I am a female.

other

male

union

organizers who are not being harassed.

That

claim is

submitted

Doulamis asserts a

buttressed by the

by

Chaulk

to

bona fide

sex discrimination

underlying papers

the

district

in the

court.

pleadings

Doulamis

was

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

publicity materials.

in

From

1990 until the autumn

warnings

the time she began working

of 1993, Doulamis

and no patient complaints.

International Association

of EMTs

organizing campaign at Chaulk.

at Chaulk

received no written

In the middle of 1993, the

and Paramedics began

a union

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

organization

of a

of

Chaulk's

union.

called from a training

parent

On November

company

10, 1993,

session to meet with

calling

for

Doulamis was

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

they

that meeting that she was "pretty" and that

believed that the other employees at Chaulk would listen to

her because

union

she was "pretty."

advocate,

saying

that

They asked her to

her

physical

become a non-

appearance

persuade other employees to vote against the union.

Shortly

thereafter,

harassing warnings

the job and her

the

pro-union

Doulamis

from Chaulk

began

with

She refused.

series

management about her

union activities.

letter

receiving

Burgess, who

Doulamis,

did

not

would

of

conduct on

had co-authored

receive

such

harassment.

Doulamis believed

punishment

heart

for her

that she

union activities

of her complaint

was being singled

out for

because of her sex.

___________________

before the MCAD

was that

The

she was being

harassed for

including one

her union activities while male union organizers --

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

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:

a sex discrimination claim

arises out

whether

based on state law is preempted if it

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

preemption doctrine

at

188,

within the

when applied in a

there is

prohibited by the

may come

still

no

scope of

"mechanical fashion," id.

___

preemption over

NLRA unless the

the Garmon
______

conduct

arguably

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

____________________

At

issue in Sears was conduct

_____

distinct
"arguably

ways.

The

conduct was

both "arguably

prohibited" by the NLRA.

between those two categories

the same conduct
distinct

that could be analyzed

lines of

happened to
analysis.

"arguably protected,"
an aggrieved party

protected" and

The Court drew a distinction

of conduct (although in that

qualify as both)
If

the

activity

a finding of preemption

case,

and imposed
at

issue

two

is

is required where

has a reasonable opportunity of

invoking the

NLRB jurisdiction or of inducing his adversary to do so.

207.

in two

Id. at
___

If an activity is "arguably prohibited," state jurisdiction

is preempted only if
identical to

the issues presented to the state court are

those that

could be

presented to

the NLRB.

latter rubric leaves much more room for state regulation.

200.

Since sex discrimination

NLRA,

the conduct

at issue

is clearly not

in this case

The

Id. at
___

protected by the

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

could have been

put to

the NLRB the

to that which

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

Majority

Op.

typescript
cases

jurisdiction

remains

at

typescript

10 n.4.

While

involving

"arguably

12;
this

matter

see
___

also
____

speculation."

Majority

consideration is

protected"

-30-

of

conduct, it

Op.

at

important to
is

not

to

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

To

make

out her

Doulamis needs to show

and (2)

"either that

pretext or

by

discrimination."

NLRB could

claim

on

her chapter

(1) a prima facie case

the employer's

direct evidence

turned on

action

of discrimination

articulated reasons are

that the

Blare, 419 Mass. at 444.

_____

not have

151B

actual motivation

was

The action before the

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

letter) -- the

the

same

MCAD will not have

whether one of the two

activity (co-authoring

to decide as a

In other words, insofar as

were

same

doing the

matter of law

was engaged in union activity, while

other was not.

thing (yet

only

the

the

Doulamis and Burgess

one was

harassed),

the

____________________

"arguably prohibited" conduct.

There also seems to be an absence of record support for either

the proposition that the

before

the

NLRB

"comprehensive."

or

the

sex discrimination action was addressed

proposition that

the

is

The settlement agreement, dated March 22, 1995,

does not refer to alleged sex discrimination.

its terms, the

settlement

agreement applies "only

Also, according to

[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."

filed

December

included
according

Only one
9,

1993,

of those docket

involves Doulamis.

in the settlement are

to Chaulk,

made

31157, filed November 29,

numbers, 1-CA-31196,

the other two

by Doulamis:

Apparently

not

claims that were,

docket

numbers 1-CA-

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
her

the

Complainant's presentation

discrimination

Commission,

the

underlying

It is

Commission

to

did,

fact,

in

Complainant's
activities;

show

of

the

need

find that

not

interfere

this

with

the

organize union

to

be made

necessary for

anti-union

regarding the
animus, if

Rather,
that

be

the Respondent

it

exist.

this

not necessary for

nor is

Respondent's

must

dispute

efforts to

determination

before

'merits'

labor

resolved.

should

case

of

one

the Complainant

she

was

treated

dissimilarly by the Respondent,

and that

the impetus for that dissimilar treatment

was due to her gender.
role nor the

goal of this

assess the catalyst

actions.

It is neither the

It

Commission to

of the
is,

Respondent's

however,

Commission's purpose to ensure

this

that such

actions are not gender motivated.

In the present case, the Commission may

decide

the

making

issue

in

threshold

dispute

without

determination

of

whether the employer had

interfered with

the employee's union activities.

only determine whether the

It need

treatment the

Complainant received, rightly or wrongly,

was

different

from

that

of

her

male

counterparts and motivated by her gender.

It

is in

must be understood.

this context

While it

that the

is true that

MCAD's interrogatory

the MCAD has

asked

Chaulk questions relating to union organizing activities (and has

perhaps

shown

jurisdictional

determining

insufficient

problem),

it

factually whether

sensitivity

has done

so

Doulamis was

-32-

to

for

the

possible

the purpose

of

treated differently

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

is or is

not a union activity

recognized,

Doulamis'

sex

independently of any labor

under the NLRA.

As

discrimination

law claim.

the MCAD has

claim

Chaulk's conduct

exists

was not

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

Cf. Tamburello
___ __________

v. Comm-Tract Corporation, No.

______________________

at 10-11 (1st Cir.

Garmon
______

to

October 2, 1995) (RICO claim

where reviewing court

some portion

determine

95-1295, slip op.

would be forced

of defendant's conduct violated

whether

the

plaintiff

had

preempted under

to decide whether

federal labor laws

established

RICO

predicate act).10

The Sears inquiry suggests that the MCAD claim does not
_____

fall within the scope

an

even

more

conclusion.

including

of Garmon preemption.
______

compelling

consideration that

Of paramount importance in

one

under

Garmon,
______

Metropolitan Life Ins. Co.

___________________________

There

is

is, however,

yields

the

same

any preemption inquiry,

congressional

v. Massachusetts, 471
_____________

intent.

See
___

U.S. 724, 747

____________________

10

Significantly, particularly

issues raised in Part

with

respect

to the

II, any issue concerning whether

Younger
_______

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
union

organizers were engaged in protected

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)

___ ________________
________
defendant cannot, merely by injecting
_________
action that asserts what is plainly

a federal question into an

a state-law claim, transform

the action into one arising under federal law,

the forum in which

("[A]

thereby selecting

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

omitted).

or the

the

ultimate

If Congress

touchstone")

clearly

evidenced

of whether states may

federal courts

its

quotations

has clearly evidenced its intent

other on the question

area of conduct,

(internal

belief

must follow it.

that

state

one way

regulate an

Congress

has

anti-discrimination

statutes do not unduly interfere with federal labor policy.

Doulamis' claims

also

not only come under

come within the scope of Title

chapter 151B but

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").

fact alleged a violation

of Title VII and

She has in

has indicated in

her

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

EEOC.

The

provide

Co.,
___

Supreme Court has said that the NLRA and Title VII

concurrent

415 U.S.

remedies.

36, 47-48 (1974);

Lead Construction Corp., 437

_________________________

1971); cf. Britt

___ _____

See Alexander
___ _________

v. Gardner-Denver
______________

see also Beverly

___ ____ _______

F.2d

1136, 1140

v. Lone Star
_________

n.22

v. Grocers Supply Co., Inc., 978

_________________________

(5th Cir.

F.2d

1441,

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

are not preempted by the NLRA.

available

concurrent

under

both

jurisdiction

the

[Our] cases hold that a remedy is

NLRA

between

and

Title VII

Title

VII

and

and

the

recognize

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

employer policies,

which

violate

treatment of

alleges

the

engaged

in expression

even within the context

Civil

minorities or

discharge for

Civil Rights

has

Rights Act,

such

of union activities,

as

sexual harassment, and

that expression,

against

discriminatory

the employee

section 704(a)

[of the

Act] would be implicated for the narrow expression-

related claims.").11

Thus,

even

accepting

factual basis for the sex

basis for the unfair

discrimination

Doulamis

conduct

is

identical

by chapter

provide a concurrent

would be difficult

enforcement of

Title

to that

before

pursue her claim

See Alexander,
___ _________

prohibited by

proscribed

that

employment practice claim and that

claim

EEOC.

view

the

discrimination claim provides the same

is still entitled to

before the

the majority's

151B and

nearly

chapter 151B with

Since the

the same

Congress intended Title

to Congress any

NLRB,

under Title VII

remedy to the NLRA in areas

to impute

the

415 U.S. at 47-48.

VII is

the sex

as

that

VII to

of overlap, it

hostility to

respect to areas

the

of potential

overlap with the NLRA.

There

is, however, no need

to rely on

such a general

proposition

stated in the

itself that

in this

case

language and

because

Congress

through the structure

state anti-discrimination laws may

that overlaps with the NLRA.

has

affirmatively

of Title

VII

provide a remedy

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.
Beverly, 437 F.2d at 1140, n.22.
_______

-35-

See
___

preserve the operation of state anti-discrimination laws in Title

VII,

see 42
___

U.S.C.A.

2000e-7, but

discrimination statutes

an integral

enforcement structure.

See
___

706(c)").

in

Section 706(c) of

states

like

42 U.S.C.A.

60 days

state anti-

Title VII

2000e-5(c) ("section

Title VII explicitly provides

statutes and an agency charged with

the first

the

component of the

Massachusetts (which

jurisdiction in the state

it made

have

that

anti-discrimination

enforcing the state statute)

administrative agency is exclusive for

_________

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.

F.2d 817, 822 (1st Cir.

706(c), the

1985)

Isaac v. Harvard University, 769

_____
__________________

("The issue reflected in

relationship between federal and

section

state remedies for

employment discrimination, received much attention throughout the

legislative

section

process.").

706(c)

of Title

The

VII

legislative history

was

enacted "'to

shows

keep

that

primary,

exclusive jurisdiction in the hands of the State commissions

sufficient

period of

time

problems at the local level.'"

(1964)

(comments of

to let

them

work out

for

their own

Id. (quoting 110 Cong. Rec. 13087

___

Senator Dirksen)).12

It

was

critical to

____________________

12

The

EEOC has

recognized the

importance of

anti-discrimination statutes to

operate in

Congress'

VII.

purposes

for

Title

allowing state

order to

See,
___

e.g.,
____

effectuate
29

C.F.R.

1601.13(a)(3)(i) (1995) ("In order

policy

of section 706(c) of

title VII, which

local fair employment practice

the

to give full weight

to the

affords State and

["FEP"] agencies that come within

provisions of that section

an opportunity to remedy alleged

-36-

the passage of

defer

to

Moreover,

the

Title VII that

states

Congress

in

did not

the federal government

matters

devise

involving

this

initially

discrimination.

enforcement structure

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

of

effort).

"was

As this

court has previously

first, and foremost, a

said, section 706(c)

statute of deference."

Isaac, 769
_____

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

Evans,
_____

implicit

441

message

duplication,

Congress

U.S. 750

was

clearly

(1979)

appears

at

the

had the

and

to

stating

be

heart

that

of

NLRA in

that "[t]he

deference,

section

mind

Court's

and

706(c)").13

when it

not

And

mandated this

principle of deference to the state anti-discrimination statutes.

See Alexander, 415 U.S.

___ _________

at 48 n.9 (quoting

(1964)

(where Senator Joseph Clark,

bill,

introduced

an

interpretive

110 Cong. Rec.

one of the

memorandum

7207

sponsors of the

specifically

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

If

Congress

believed

that state

anti-discrimination

statutes could

not regulate

perhaps preemption would

case.

Nothing

coextensively with Title

be appropriate.

in Title VII says

But that

VII, then

is not

the

that state anti-discrimination

____________________

discrimination concurrently regulated by title VII or the ADA and

State

or

local

procedures with

law,

the

Commission

respect to allegations

adopts

the

following

of discrimination

filed

with the Commission.").

13

Under

the

EEOC's

regulations the

designated FEP agency, see 29 C.F.R.

___

MCAD

1601.74

a certified designated FEP agency, see

_________
___

is

not

only

(1995), but it is

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.
___

-37-

1601.75(a) (1995).

statutes

cannot

significantly,

exclusive

section

apply

there

coextensively

clearly

jurisdiction of

is

state

706(c) is limited to

with

Title

nothing that

VII.

says

that

administrative agencies

cases under Title

More

the

under

VII that do not

overlap with the NLRA.

It

is

possible

to

draw

at

least

relevant to congressional intent from Title VII.

affirmatively

intended

would operate to

that state

regulate conduct

two

conclusions

First, Congress

anti-discrimination statutes

covered by Title

VII to

the

same extent as

Title VII itself and,

also be covered

by the NLRA.

thus, in areas

Second,

that might

Congress could not

have

intended to eliminate the operation of state

anti-discrimination

statutes

because

over claims

actively impair
______

the

enforcement

scheme

preemption,

which

covered by

Title VII

operation of

Congress

is

Title VII

and frustrate

envisioned.

arguably

much

that would

Not

broader

even

than

the

ERISA

Garmon
______

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

___ ___________________________
_____________

U.S. 724,

preemption

747 (1985) (distinguishing ERISA

by

stating

that

ERISA

mandated), allows preemption where

of Title VII.

(1983)

preemption from NLRA

preemption

is

statutorily

it would impair the operation

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

___ ____
____________________

(where ERISA

preemption of

a state

anti-discrimination

statute

would impair

preemption).

to allow

the operation

of Title

VII, there

is no

The reasonable conclusion is that Congress intended

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

machinery of

federal

courts

and

the

grievance-arbitration

collective bargaining agreements

in the resolution

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

an

employee

covered by

whether

suit

in

claim

a collective

the

bargaining

had a

for discrimination

bargaining agreement.14

employee's remedies

agreement

federal

provided

(and subject

court

that

based

on

was clearly

At issue

collective

to arbitration)

precluded a

VII.15

The

unanimously held that it did not, saying:

[L]egislative
have

enactments

long evinced

accord
against

parallel or

in

this

area

general intent

to

overlapping remedies

discrimination.

was

the

Title

in

There

In the

Civil

Court

Rights Act of 1964,

seq.,
____

42 U.S.C.

Congress

considered

indicated

the
to

be

of

priority."

Newman
______

v.

this

it

against

the

"highest

Piggie Park
____________

Enterprises, [390 U.S. 400,

___________
with

that

policy

discrimination

Consistent

2000a et
__

402 (1968)].

view,

Title

VII

provides for consideration of employmentdiscrimination claims

See
___

42 U.S.C.

in several forums.

2000e-5(b) (1970

Supp. II) (EEOC); 42 U.S.C.

(1970

ed.,

Supp. II)

agencies); 42 U.S.C.
________

2000e-5(c)

(state and local

________________
2000e-5(f)

ed., Supp. II) (federal courts).

general,

submission

ed.,

of a

(1970
And, in

claim

to one

____________________

14

The right

conferred right.

to bargain

collectively is, of

Allis-Chalmers Corp.
____________________

course, an

v. Lueck, 471
_____

NLRA

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

submission

not
to

legislative

preclude

another.
history

later

Moreover,
of

the

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

situations.

applied

See Lingle v.
___ ______

similar

analysis in

Norge Division of Magic Chef, Inc.,

___________________________________

486 U.S. 399, 412 (1988) (suggesting that "

state anti-discrimination
laws,

like a

state court

suit

analogous

laws, even

though a suit

alleging retaliatory

to determine whether

301 does not preempt

under these

discharge, requires

just cause existed

to justify

the discharge." (citation omitted)); Colorado Anti-Discrimination

____________________________
Commission
__________

v.

Continental Air Lines, Inc., 372

____________________________

(1963) (rejecting
was

a claim

U.S. 714,

724

that a state

anti-discrimination law

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

and 93 of the New Jersey statute.

had, through

the passage

Disclosure Act
state

representatives.

dependent

upon

the

Reporting and

to pre-empt all

specific

right

of

decide which individuals will serve as officials of

representatives.

federal

operation of

touched

86

Court's view, Congress

of the Labor-Management

which

their bargaining
504(a),

In the

("LMRDA"), disclaimed any intent

regulation

employees to

completely preempt

qualification
Because the

state

laws

LMRDA had imposed,

standards

in

for

union

LMRDA affirmatively preserved

in

in part on state

The

603

and

laws for its

made

504(a)

the

itself

enforcement, the Court

held that state laws could impose their own similar qualification
standards on union officials.

Brown is highly instructive

_____
for this

case.

congressional
but also in

In Brown,
_____

Id. at 509.
___

on the type of approach

the Court focussed on

intent that could be

a parallel

found not just

federal statute.

statute there specifically reserved

over the conduct coming within its

-40-

required

the indicia of

in the NLRA,

The parallel

federal

a place for state regulation

scope.

While the LMRDA

does

National labor relations policy

with the

NLRA.

labor relations

clearly indicated

Title VII

law

as is

that

is as much

the

does not begin and end

a part of the

NLRA.

network of

Where Congress

state anti-discrimination

laws

has

so

are

to

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

to

the exclusion

Congress intended

the

words

of

Title VII)

preemption under

of Garmon,
______

preemption

"compelling congressional

it

is difficult

to

conclude

the circumstances here.

should

direction."

not

be found

Garmon, 359

In

absent

U.S. at 244.

______

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

anti-discrimination

statutes

including federal labor laws,

may

supplement

federal

laws,

and Garmon preemption is therefore

______

inappropriate.

II.

Having

stated

my

Doulamis' sex discrimination

consider

issue

what perhaps

of abstention.

proceedings, Chaulk

enjoin

may be

disagreement

with

claim is preempted

the

view

that

by the NLRA,

conceptually prior

issue, the

By seeking an injunction against the state

has effectively

the state courts from

asked the federal

deciding the Garmon

______

the potentially dispositive question,

court to

issue.

apart from whether

Thus,

Garmon
______

preemption is

appropriate, is whether this

federal court should

____________________

not bear on this case, Title VII does, and Title

that

Congress

discrimination

intended

federal

to overlap.

The

and

state

VII makes clear

regulation

differences between

Brown and
_____

this case do not affect the central instruction of Brown:

_____
federal court

must defer to

preemption analysis, even one

congressional intent in

-41-

that a

making any

involving the NLRA and even

is expressed in another federal statute.

of

if it

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

the state agency and

courts to proceed.

issue, this issue is difficult, but

under Younger v.
_______

Harris, 401
______

As

and allow

with the preemption

on balance I would hold here

U.S. 37 (1971),

and its

progeny,

that abstention is appropriate.

Younger
_______

administrative

implicate an

prevents

interference

proceedings if

important state

they

with

are of

Inc.,
____

a judicial

interest, and provide

plaintiff an adequate opportunity to litigate

claim.

pending

state

nature,

the federal

his constitutional

Ohio Civil Rights Commission v. Dayton Christian Schools,

____________________________
_________________________

477 U.S.

619, 627

(1985).

Although Chaulk

claims that

Younger abstention is a
_______

the Supreme Court has

principle of "discretionary

stated that where a case

deference,"

falls within the

Younger parameters, a district court has no discretion to provide

_______

injunctive relief

and must

Conservation District
_____________________

(1976) ("Where

of cases, there

abstain.

See
___

v. United States,
_____________

424 U.S. 800,

a case is properly within

is no discretion to

Colorado River Water

_____________________

816 n.22

[the Younger] category

_______

grant injunctive relief.");

see also Sun Refining & Marketing Co. v. Brennan, 921 F.2d
___ ____ _____________________________
_______

639

635,

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

case is properly within

the Younger category of cases,

_______

no

part

discretion

on

the

of

the

federal

court

there is

to

grant

injunctive

Thompson,
________

relief.");

Seneca-Cayuga Tribe
____________________

v.

State ex rel.
_______________

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

_______

-42-

not discretionary

once conditions are met,

circumstances that render a state

absent extraordinary

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

see Bettencourt
___ ___________

complaint was filed,

v. Board of Registration in Medicine,

__________________________________

904 F.2d

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

point

of

reference is

complaint"),

and that

the

date

plaintiff

the proceedings

filed his

are judicial

federal

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

discrimination

Supreme

is

Court

has

a sufficiently

said

that

important

remedying

state

sex

interest to

trigger Younger.
_______

("We

have

no

discrimination

bring

the

progeny].").

See
___

doubt

is

Dayton Christian Schools, 477 U.S.

________________________

that

the

elimination

a sufficiently

present case

within the

of

important

ambit

at 628

prohibited sex

state interest

of [Younger
_______

to

and its

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

River,
_____

discussing Younger
_______

however, was

discussing criminal

cases.

abstention and

Colorado
________

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,

Orleans Public Service, Inc.

____________________________

is most likely

foreclosed by

New
___

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

particular

case

substantial

Courts rather

--

federal

must

to

its

which

interest

could

interest in

look

to

the

in

the

arguably

the

outcome

be

opposite

"importance

of

offset

by

outcome."

of

the

the

Id.
___

generic

proceedings

to

Schools).
_______

the

As

Massachusetts has

State."

Id.
___

(citing

Dayton Christian
_________________

Dayton
Christian
Schools
____________________________

a legitimate

preventing sex discrimination.

made

and important state

explicit,

interest in

Thus the important state interest

prong of Younger is satisfied in this case.

_______

Where there is an important state interest, the Supreme

Court

law

has noted that a federal court should abstain unless state

clearly bars

constitutional

the interposition

claim.

reason

provide

to doubt

Chaulk with

federal plaintiff's

Middlesex County Ethics Committee

___________________________________

Garden State Bar Ass'n, 457 U.S.

______________________

no

of the

that

a full

423, 432 (1982).

the Massachusetts

and fair

v.

Here, we have

state

opportunity to

courts will

raise the

Garmon
______

preemption

question.

argument before the MCAD

pursue

it before

Christian Schools,
_________________

the

Chaulk

raised

and will have a further

Massachusetts appellate

477 U.S. at 629

that constitutional claims may

the

preemption

opportunity to

courts.

("[I]t is sufficient

Dayton
______

. . .

be raised in state-court judicial

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

-44-

If federal

law barred

from deciding the Garmon

______

state courts

preemption question, then the "adequate

opportunity" prong would not

appears

the Massachusetts

be met.

Indeed such

to be at the heart of Chaulk's argument.

a proposition

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

under

of jurisdiction to decide

Garmon, they are

______

whether a case
_______

is so

a case once
____

not deprived

preempted.

it is preempted

of jurisdiction

State

courts have

jurisdiction to decide federal preemption issues.

to decide

concurrent

See Chick Kam

___ _________

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

proceeding presents

the proper

course is

a federal

issue, even a

pre-emption issue,

to seek

resolution of

that issue

state court."); see also

___ ____

934 F.2d 1100,

state court

Turnbow v. Pacific Mut. Life Ins. Co.,

_______
___________________________

1103 (9th

Cir. 1991) (no

jurisdictional bar

deciding ERISA preemption question);

Marketing Co.
______________

by the

v. Brennan,
_______

921 F.2d

635,

to

Sun Refining &

______________

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.

___ _____________________________________________

U.S.

380,

raised

393 (1985)

("when a

claim

preemption is

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

_______________________________________

the state court" (emphasis supplied)).

_______________

state courts

preemption

raise its

and

of Garmon
______

Davis, 476
_____

have concurrent

issue, Chaulk

jurisdiction to decide

will have

Garmon preemption
______

Because the Massachusetts

an adequate

claim in the

the Garmon
______

opportunity to

Massachusetts courts,

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

differently than typical Younger abstention cases.

_______

"[t]he real

issue in this

should be applied in a

treating this

which

"is

case is whether a

treated

It says that

doctrine of comity

Garmon preemption case."

______

case under Younger "confuses

_______

be

It

argues that

two federal concepts

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

_______

predicated

government

to

mandatory and

Supremacy

upon

discretionary

fundamental

arises under

Clause."

State

deference

interests,"

the Constitution,

According

to

Chaulk

by

the

federal

preemption

"is

specifically, the

"[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

said

apparently rejected

that preemption

issues

do not

it.

In

involve a

NOPSI the
_____

greater federal

interest than other constitutional challenges:

There

is no greater

enforcing

the

federal interest in

supremacy

statutes than in enforcing

of

explicit

constitutional

of

Court

federal

the supremacy
guarantees,

and

constitutional

action,

no

challenges to

less than

challenges,

call

state

pre-emption-based

into

question

the

legitimacy of the State's interest in its

proceedings
action.

reviewing or

Yet it

enforcing that

is clear that

the mere

assertion of a substantial constitutional

challenge to state
compel

the

action will not alone

exercise

jurisdiction. . . .

of

federal

[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

substantial

case, see Sun Refining,

___ ____________

claim of

overcome Younger.
_______

federal

921 F.2d at

preemption is

639, and even a

not sufficient

to

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.,
______________________________
(choice

of

forum preemption

waived,

while choice

argument might

of law

be made that

forum preemption there

than in a

62 F.3d
is

case involving

jurisdictional

is not

interest.

interest is

See
___

and may

because Garmon
______

choice of law

1995)

and cannot

be

be waived).

The

involves choice

of

and that,

to protect

accordingly,

appropriate here even if abstention

for choice of law preemption would be.

federal

(1st Cir.

is a greater federal interest

abstention here might not be

the

8, 11

not to

be

NOPSI, however, says that

_____
weighed against

Sun Refining, 921 F.2d at 641.

____________

the state

Thus even if the

federal interest in Garmon preemption is weightier than in choice

______
of law preemption cases,
Younger
_______

inquiry;

that consideration does not

abstention

is

appropriate

as

affect the
long

as

an

important state interest is identified and the other requirements

are

met.

See
___

Middlesex County,
________________

-47-

457

U.S.

at

431-32; Sun
___

The exception to Younger

_______

may

be improper

injury

absent

sufficient

where

equitable

risk

of

that provides that abstention

the plaintiff

relief

irreparable

is

might suffer

not

injury

applicable

may

exist

irreparable

here.

where

the

challenged state statute is "flagrantly and patently violative of

express constitutional prohibitions. . . ."

53-54.

But chapter

and, given

difficult

151B is hardly

the complexities

to

describe

the

Younger, 401 U.S. at

_______

flagrantly unconstitutional

of the preemption

MCAD's

actions

as

question, it

is

flagrantly

or

patently violative of the Garmon preemption principle.

______

Further, although the Supreme

the

question

of

whether

Court in NOPSI left open

_____

"facially

conclusive"

claim

for

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

_______ ___ _____

491

U.S. at

367,

conclusive.

For

the preemption

Chaulk's

claim

preemption

here is

claim

not

facially

be

facially

to

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

labor practices nor has

not sought

at 367.

It

regulate unfair

it questioned the authority of

to adjudicate the unfair

U.S.

directly to

has in

labor practices claim.

fact said

that "the

Cf.
___

the NLRB

NOPSI, 491
_____

issue of

union

interference is

properly

left to

Neither has it challenged the

the provinces

of the

NLRB."

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

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

factual inquiry

purposes of

inquiry

can hardly

a threshold

-- and

what requires

be deemed 'flagrantly'

further

unlawful for

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
agreement itself "does not

charges.

Moreover, the

settlement

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

be facially

situations in which the preemption

conclusive and abstention would

For example,

this case

Doulamis alleged

claim was within

NLRA would not turn on

under

pleading.
such

appropriate.

not be appropriate.

quite differently

circumstances
Moreover,

In such a

the exclusive jurisdiction

facts would
abstention

were

the MCAD

need be
would

in the

case, the question

deciding whether her claim was a

No more

had

the discrimination Chaulk

based on her potential affiliation

opposed to her gender.

whether the

artful

be viewed

before the MCAD that

engaged in was simply

union, as

would

claim could

of the

case of

determined and

probably

to assert

not

be

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

December 1,

Doulamis' complaint
1993

the

proceedings

before the MCAD

before

the

was filed
MCAD

began

November 23, 1993 when Doulamis underwent her intake interview.

-49-

on

on

such a

theory as

brief, its

a basis to

reply brief,

requested

by

argument

that

proceeding was

the

prevent abstention.

and the supplemental

panel at

abstention

oral

is

argument

inappropriate

Its

initial

letter memorandum

are

devoid of

because

the

pending at the time of the MCAD complaint.

therefore waived.

any

NLRB

It is

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.

(abstention

See
___

Sun Refining,
_____________

was appropriate

despite

action violated

the exclusive

fact that

action had

OSHA

proceeding

of

NLRB

been

is filed

action

F.2d

claim that

pending and

at

should not

at

639-42

the state

jurisdiction of OSHA

before the state action was brought).

existence

921

law

and despite

concluded

months

As a matter of policy, the

the

time

control the

parallel

matter here.

state

The

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

state proceedings if it

with its

thought the state proceedings conflicted

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

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
irreparable

injury, such

system of collective
threat exists here.

as

an "imminent

bargaining."

an immediate threat of
threat to

Id. at 595.
___

No

an entire

comparable

In fact, in Watson the Court explicitly said

______

-50-

move speaks volumes.

I respectfully dissent.

____________________

that

the

threat of

would not be
___

multiple prosecutions

under the

sufficient to justify an injunction.

state law

See id.
___ ___

The

Court also abstained under the doctrine of Railroad Commission of

_________
______________________
Texas v. Pullman Co., 312 U.S. 496 (1941).
_____
___________

-51-

See id. at 599.

___ ___