USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1249
CHAULK SERVICES, INC.,
Plaintiff - Appellant,
v.
MASSACHUSETTS COMMISSION AGAINST
DISCRIMINATION, ET AL.,
Defendants - Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Lynch, Circuit Judge, _____________
and Casellas,* District Judge. ______________
_____________________
Arthur P. Menard, with whom Paul J. Murphy and Menard Murphy ________________ ______________ _____________
& Walsh were on brief for appellant. _______
Macy Lee, Assistant Attorney General, with whom Scott _________ _____
Harshbarger, Attorney General of Massachusetts, was on brief for ___________
appellee Massachusetts Commission Against Discrimination;
Katherine McClure on brief for appellees Petrina ____________________
Doulamis/Sullivan and International Association of EMTs &
Paramedics, NAGE and AFL-CIO.
____________________
November 27, 1995
____________________
* Of the District of Puerto Rico, sitting by designation.
____________________
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CASELLAS, District Judge. Plaintiff-appellant Chaulk CASELLAS, District Judge. ______________
Services, Inc. ("Chaulk") originally brought this action for
declaratory judgment, preliminary and permanent injunctive relief
against the Massachusetts Commission Against Discrimination
("MCAD")("the Commission"), Petrina Doulamis/Sullivan
("Doulamis") and the International Association of EMTs &
Paramedics, NAGE, AFL-CIO ("the Union"), to prevent defendants-
appellees from proceeding with the case of Doulamis v. Chaulk ________ ______
Services, Inc., 93-BEM-2145, then pending before the MCAD, on the ______________
basis that the action was preempted by federal law, particularly,
the National Labor Relations Act ("NLRA")("the Act"), 29 U.S.C.
151 et seq. The district court abstained from deciding Chaulk's ______
preemption claim, citing Younger v. Harris, 401 U.S. 37 (1971), _______ ______
Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., _____________________________ _______________________________
477 U.S. 619 (1986) and Brotherhood of Locomotive Engineers v. ____________________________________
MCAD, 695 F. Supp. 1321 (D. Mass. 1988), and consequently ____
dismissed Chaulk's complaint. We vacate the judgment below and
remand the case to the district court.
I. STATEMENT OF THE CASE I. STATEMENT OF THE CASE _____________________
A. Facts A. Facts
In the middle of 1993, the International Association of
EMTs and Paramedics, NAGE, AFL-CIO, began a union organization
campaign at Chaulk. Doulamis became involved in the campaign
sometime during the fall of 1993, when she and Eric Burgess, a
male Chaulk employee, wrote a letter to the president of Chaulk's
parent company calling for the organization of a union. On
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November 10, 1993, Chaulk's CEO Nicholas O'Neil and Joseph
Gilmore, vice-president, as part of their own campaign against
the union organization effort, met with Doulamis in an attempt to
pressure her into becoming a non-union advocate. Doulamis
declined their invitation.
As a result of this meeting, the Union filed unfair
labor practice charges on November 29, 1993 with the National
Labor Relations Board ("NLRB") against Chaulk, claiming that it
coerced and intimidated Doulamis, a known union organizer, by
questioning her regarding union activities and threatening
retaliation for those union activities, in violation of the Act.
On December 6 and 9, 1993, the Union filed two additional charges
with the NLRB, both of which alleged that Chaulk interfered with
Doulamis' labor activity rights and discriminated against her
because of her union organization efforts.1
Thereafter, the NLRB issued a complaint against Chaulk
alleging specific violations of 8(a)(1) and (3) of the NLRA,
and charging that Chaulk had interfered with, restrained and
coerced several employees, including Doulamis, in the exercise of
rights guaranteed by 7 of the Act. With respect to Doulamis,
the complaint alleged that on November 29, 1993 Chaulk issued a
____________________
1 The Union filed several additional unfair labor practice
charges against Chaulk stemming from its alleged interference
with the protected rights of numerous other employees. Here, we
refer in particular only to those which, according to the
parties, involve charges of unlawful conduct directed against
Doulamis. Furthermore, while Doulamis is not named as the
aggrieved employee in these charges, both parties agree that the
employee referred to therein is, in fact, Doulamis.
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written warning and on December 7, 1993 issued a letter addressed
to Doulamis threatening her with discipline if she attended any
future 401(K) meetings held by Chaulk with its employees. In
addition, the complaint charged that on December 2, 1993, Chaulk
suspended the coauthor of the pro-union letter, Eric Burgess.
According to the complaint, Chaulk engaged in this conduct
because it mistakenly believed that Doulamis, together with
several of her fellow employees, had engaged in misconduct
arising out of union or other protected concerted activity. See ___
Complaint and Notice of Hearing at s 7-8. It is also alleged
that these employees formed, joined and assisted the Union and
otherwise engaged in concerted activities, and that Chaulk's
conduct was a deliberate attempt to discourage the employees from
engaging in these activities, in violation of sections 8(a)(3)
and (1) of the Act. See Complaint and Notice of Hearing at s 7- ___
10.
A full and comprehensive settlement agreement was
reached between Chaulk and the NLRB in March 1995 regarding these
claims. As part of the settlement, Chaulk agreed to, inter alia, _____ ____
expunge from its files any reference to the transfer of Eric
Burgess; the written warnings set forth in the complaints of
Doulamis, Richard Graham, Chris Adler, Gary Winitzer, Jim Taubert
and Jean Taubert; the suspensions of Eric Burgess, Chris Adler,
Jim Taubert, Jean Taubert, Gary Winitzer, Michael Cook, Kathryn
Edwards and James McLaughlin; and the terminations of Fran
Wilkerson, John Borden and McLaughlin. In addition, Chaulk
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agreedto payout approximately$12,000in backpay tothese employees.
Meanwhile, on December 1, 1993, after the Union had
already filed its first charge with the NLRB, Doulamis filed a
complaint with the MCAD against Chaulk, claiming she had been a
victim of unlawful sex discrimination. Specifically, she
complained of being harassed about her union activity, allegedly
because of her gender, in that the "males who are also involved
[in the union activity] are not being harassed."
On February 18, 1994, Chaulk moved to dismiss Doulamis'
complaint at the MCAD for lack of jurisdiction, on the grounds
that it was preempted by federal law. On May 13, 1994, the MCAD
issued an order denying the motion to dismiss and retaining
jurisdiction over Doulamis' discrimination claims, reasoning that
it did not have to address the merits of the underlying labor
dispute in order to resolve the allegations of gender
discrimination. The Commission then promptly issued a set of
interrogatories to Chaulk, requesting detailed information about
all known union organizers, their role in organizing efforts and
any significant acts of union organizing known to appellant,
including copies of any communications between Chaulk and
Doulamis relative to the union organization effort.
B. Proceedings Below B. Proceedings Below
The present action was filed in the United States
District Court for the District of Massachusetts on December 8,
1994, seeking a declaratory judgment as well as an injunction
barring the continued prosecution of Doulamis' complaint before
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the MCAD. Chaulk claimed that the Commission's assertion of
state authority over her charge directly threatened and
significantly interfered with the jurisdiction of the NLRB. As
noted above, the district court granted MCAD's motion to dismiss
on abstention grounds. It did not decide the preemption issue.
Chaulk now appeals the district court's judgment.
II. ANALYSIS II. ANALYSIS ________
A.Preemption A.Preemption
Relying on the doctrine of preemption first enunciated
in San Diego Building Trades v. Garmon, 359 U.S. 236 (1959), __________________________ ______
appellant argues that the district court erred in allowing the
Commission's motion to dismiss on the grounds of Younger _______
abstention and that it should have decided the preemption issue.
Citing primarily to Bud Antle, Inc. v. Barbosa, 35 F.3d 1355 (9th _______________ _______
Cir. 1994), Chaulk asserts that when it is clear that the state
tribunal is acting beyond the lawful limits of its authority,
there is no principle of comity that is served by abstention.
Id. at 1356. Accordingly, it urges us to find the Younger __ _______
abstention doctrine inapplicable to this case, address the merits
of its preemption claim, and declare that appellee's charge of
sex discrimination before the Commission is indeed preempted by
federal law.
We begin by delineating the present scope of the so
called Garmon preemption doctrine. The Supreme Court held in ______
Garmon that when an activity is arguably subject to 7 or 8 of ______
the National Labor Relations Act, the states as well as the
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federal courts must defer to the exclusive competence of the NLRB
if the danger of state interference with national labor policy is
to be averted. Id. at 245. When Congress enacted the NLRA, it __
enacted comprehensive procedural rules and created the NLRB to
administer this specially designed regulatory structure. The
result was a complex and interrelated scheme of federal law,
remedies and administration designed to achieve uniformity in our
national labor policy. Garmon, 359 U.S. at 242; New York ______ _________
Telephone Co. v. New York Dept. of Labor, 440 U.S. 519, 527 _____________ __________________________
(1979); Jones v. Truck Drivers Local Union No. 299, 838 F.2d 856, _____ _________________________________
872 (6th Cir. 1988)(Merritt, J., concurring in part and
dissenting in part).
In order to achieve the desired uniformity, Congress
entrusted the interpretation and enforcement of the NLRA to a
centralized administrative agency, armed with its own procedures,
and equipped with its specialized knowledge and cumulative
experience. See Garmon, 359 U.S. at 242. This administrative ___ ______
scheme was designed to avoid the danger of conflicting or
incompatible adjudications such as would inevitably result from
having multiple forums, with their diverse procedures, entertain
claims under the NLRA. Garner v. Teamsters, Chauffeurs and ______ __________________________
Helpers Local Union No. 776, 346 U.S. 485, 490-91 (1953). The ____________________________
Garmon rule is therefore intended to preclude state interference ______
with the NLRB's interpretation and enforcement of the integrated
scheme of regulation established by the NLRA. Golden State ____________
Transit Corp. v. City of Los Angeles, 475 U.S. 608, 613 (1986). _____________ ___________________
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Withal, the Garmon rule admits of some exceptions to ______
the NLRB's primary jurisdiction. For instance, where the conduct
at issue is of only "peripheral concern" to federal labor policy,
the states are not precluded from regulating the activity.
Garmon, 359 U.S. at 243. Similarly, state action is not ______
preempted where the regulated conduct touches interests "so
deeply rooted in local feeling and responsibility that, in the
absence of compelling congressional direction, courts cannot
infer that Congress has deprived the states of the power to act."
Id.2 __
When called to determine whether these exceptions
apply, courts must balance the state's interest in remedying the
effects of the challenged conduct against both the interference
with the NLRB's ability to adjudicate the controversy and the
risk that the state will approve conduct that the NLRA prohibits.
Belknap, Inc. v. Hale, 463 U.S. 491, 498-499 (1983); NLRB v. ______________ ____ ____
State of Ill. Dept. of Emp. Sec., 988 F.2d 735, 739 (7th Cir. __________________________________
1993). In doing so, we intentionally focus on the conduct at the
____________________
2 Courts have recognized a third exception to the Garmon ______
doctrine where Congress has expressly carved out such an
exception to the NLRB's primary jurisdiction. See Tamburello v. ___ __________
Comm-Tract Corporation, No. 95-1295, slip op. at 6 (1st Cir. _______________________
October 2, 1995) (citing Vaca v. Sipes, 386 U.S. 171, 179-80 ____ _____
(1967); Brennan v. Chestnut, 973 F.2d 644, 646 (8th Cir. 1992)). _______ ________
Congress has not made an exception to the NLRB's primary
jurisdiction for claims alleging sex discrimination in the
context of an unfair labor practice. See Jones v. Truck Drivers ___ _____ _____________
Local Union, 838 F.2d at 861 (sexual discrimination is a breach ___________
of duty of fair representation and within scope of 8 of the
NLRA); NLRB v. Local 106, 520 F.2d 693 (6th Cir. 1975)(same). ____ _________
This exception therefore does not apply to the facts in this
case.
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root of this controversy, namely Chaulk's alleged interference
with Doulamis' union activities, as opposed to the descriptive
title of sex discrimination given to her cause of action before
the MCAD. That is because preemption is designed to shield the
system from conflicting regulation of conduct. "It is the _______
conduct being regulated, not the formal description of governing
legal standards that is the proper focus of concern."
Amalgamated Ass'n of St., E.R. & M. C. Emp. v. Lockridge, 403 ______________________________________________ _________
U.S. 274, 292 (1971). See also, Garmon, 359 U.S. at 246 ("It is ___ ____ ______
not the label affixed to the cause of action under state law that
controls the determination of the relationship between state and
federal jurisdiction").
Doulamis' complaint highlights the risk that a state
cause of action will touch on an area of primary federal concern.
She complains of incidents of interference with her union
activities as a union organizer. The very same conduct provides
the factual basis for the unfair labor practice charges brought
by the Union on her behalf, which were eventually incorporated
into the complaint and notice of hearing issued by the NLRB. Her
claims are fundamentally grounded in an assertion that the rights
which her employer interfered with involve her union activity.
Where, as here, the case involves conduct arguably prohibited by
8 of the Act, the NLRB has broad authority to determine the
appropriate remedy for wronged employees.3 "In fact, since
____________________
3 MCAD presses the argument that gender-based discrimination is
not even within the realm of prohibited activities under the
NLRA. According to MCAD, the scope of prohibited discrimination
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remedies form an ingredient of any integrated scheme of
regulation, to allow the state to grant a remedy here which has
been withheld from the NLRB only accentuates the danger of
conflict." Garmon, 359 U.S. at 247; Richardson v. Kruchko & ______ __________ _________
Fries, 966 F.2d 153, 157 (4th Cir. 1992). Board authority over _____
claims of interference with union activities is not merely of
peripheral concern to the Act. Rather, the Board's authority to
remedy such practices is central to its purpose. See Tamburello ___ __________
v. Comm-Tract Corporation, No. 95-1295, slip op. at 9 n.5 (1st ______________________
Cir. October 2, 1995).
Moreover, the fact that the Union clearly considered
Chaulk's conduct an unfair labor practice, and that the Board
entertained such charges, only buttresses the Court's conclusion
that said conduct is not only "arguably", but obviously
prohibited under section 8(a) of the NLRA. It also highlights
the very real danger of interference with the NLRB's
jurisdiction, as it was precisely the Board's timely intervention
which in this case led to the agreement through which Chaulk
pledged, among other things, not to engage in the challenged
conduct, or take similar actions to hinder its employees in their
union activities.
Significantly, the Supreme Court has held that in cases
____________________
under the Act is limited to discrimination based on union
activities or membership. Still, the argument has been made
successfully that sexual discrimination constitutes an unfair
labor practice under 8 of the NLRA. See Jones v. Truck Drivers ___ _____ _____________
Local Union, 838 F.2d at 861 (sexual discrimination is a breach ___________
of duty of fair representation and within scope of 8 of the
NLRA); NLRB v. Local 106, 520 F.2d 693 (6th Cir. 1975)(same). ____ _________
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where the underlying conduct is arguably prohibited by the NLRA,
application of the so-called "local interests" exception hinges,
in the first place, upon the existence of a significant state
interest in protecting its citizens from the challenged conduct.
In second place, the controversy which could be presented to the
state court must be different from that which could have been
presented to the NLRB. Sears, Roebuck & Co. v. San Diego County ____________________ ________________
Dist. Council of Carpenters, 436 U.S. 180, 196-97 (1978). See ____________________________ ___
also, Tamburello v. Comm-Tract Corporation, No. 95-1295, slip op. ____ __________ ______________________
at 14 (1st Cir. October 2, 1995).
Under the Sears rationale, the critical inquiry is _____
whether the controversy presented to the state court is identical
to or different from that which could have been presented to the
NLRB.4 Sears, 436 U.S. at 197. The Court reasoned that it is _____
only in the former situation that a state's exercise of
jurisdiction necessarily involves a risk of interference with the
unfair labor practice jurisdiction of the Board which the Garmon ______
____________________
4 We note that Sears is not entirely on point, as it differs _____
from the instant case in at least one fundamental respect. In
that case, the Court was presented with a situation where the
party seeking relief in the state forum had no right to invoke
the Board's jurisdiction and the party that had the right to
invoke the Board's jurisdiction had failed to do so. The Court
expressed concern that in the circumstances of that case, Sears
may not have a chance for a hearing on its claims if state
jurisdiction were preempted without any assurance that the
dispute might eventually be brought before the NLRB. The Court
reasoned that preemption was justified only when an aggrieved
party has a reasonable opportunity either to invoke the Board's
jurisdiction himself or else to induce his adversary to do so.
Id. at 201. Here, of course, there is no such concern, as the __
Union filed the unfair labor practice charges with the NLRB even
before Doulamis filed her gender discrimination claims before the
Commission.
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doctrine was designed to avoid. Id. We assume arguendo that the __ ________
Commonwealth of Massachusetts has a significant interest in
protecting its citizens against sex discrimination in their
employment. Following the guidelines set forth by the Supreme
Court in Sears, we therefore examine whether the controversy _____
before the state forum would indeed be the same as that which
could be brought before the NLRB. Id. __
In this regard, it is telling that the Union, upon
learning of Chaulk's alleged interference with Doulamis'
activities as a union organizer, promptly filed an unfair labor
practice charge on her behalf, claiming violations of 8 of the
Act--thereby clearly characterizing the controversy as a labor
dispute, subject to the NLRB's primary jurisdiction. For its
part, the NLRB received the Union's allegations regarding
Chaulk's conduct--the same conduct that would later form the
basis for Doulamis' discrimination claim before the MCAD--
investigated them, proceeded then to issue a Complaint and Notice
of Hearing, and eventually settled the matter. Plainly, this is
not a case where the NLRB declined to exercise its lawful
jurisdiction over a labor controversy, or where the NLRB's actual
exercise of jurisdiction remains a matter of speculation. On the
contrary, the Board in this case moved aggressively to acquire
such jurisdiction and bring the matter to a full and speedy
resolution.
Furthermore, even Doulamis' own pleadings before the
Commission couch her claims in terms of a labor dispute within
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the NLRB's primary jurisdiction. Her complaint accuses Chaulk of
harassment "about [her] union activities." She also claims to
have been "intimidated by Mr. O'Neil about involvement in union
activity" and "accused of distracting the other employees with
union activity." As noted above, such conduct on the part of
Chaulk, if adequately established through competent evidence,
would constitute an undue interference with Doulamis' rights
under 7 of the NLRA and consequently a violation of 8(a)(1)
of the Act. The application of additional remedies to the
conduct here at issue only invites conflict. As the Supreme
Court stated in Garmon, "[t]he obligation to pay compensation can ______
be, indeed is designed to be, a potent method of governing
conduct and controlling policy." Id. at 247. See Sears, Roebuck __ ___ ______________
& Co., 436 U.S. at 193-94 ("[T]he pertinent inquiry is whether ______
the two potentially conflicting statutes [are] brought to bear on
precisely the same conduct.") (citations omitted). As discussed
above, Doulamis' claim of sex discrimination is founded upon the
identical facts which provided the basis for the unfair labor
practices charge brought on her behalf by the Union.
Accordingly, under the Garmon rationale, her claim before the ______
Commission is expressly preempted.
Moreover, as pointed out by Chaulk, the interrogatory
issued by the MCAD in the course of the investigation and
prosecution of Doulamis' case belies the Commission's assertion
that it need not delve into the labor aspects of the controversy
in order to dispose of her gender discrimination claims. Rather,
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the interrogatory is further proof that issues of labor law
ordinarily considered to be within the NLRB's primary
jurisdiction are precisely the type of questions that lie at the
heart of this controversy.
Finally, in order to determine the merits of Doulamis'
claims of sex disrimination, the MCAD will have to decide whether
in fact Doulamis was engaged in protected union activity, and if
so, whether she was engaged in the same type of union activity as
the other union organizers. Such a finding requires that the
MCAD become embroiled in a factual and legal determination of
what constitutes union activity, a task which has been expressly
reserved to the jurisdiction of the NLRB. More importantly, if
the Commission were allowed to entertain Doulamis' claim of
sexual discrimination, there is the potential risk that it will
incorrectly apply the substantive rules governing labor
controversies laid out by Congress in the NLRA. It is precisely
this potential for incompatible or conflicting adjudications that
Congress sought to avoid by leaving these determinations in the
first instance to the NLRB.
In the end, no recharacterization of this claim can
obscure the fact that, at bottom, this is a classic example of an
unfair labor practice claim of the kind traditionally handled in
the first instance by the NLRB. Since the controversy before the
MCAD and that resolved by the NLRB are the same in a fundamental
respect, and the risk of interference with the Board's
jurisdiction is obvious and substantial, we hold that the MCAD
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has no jurisdiction to entertain Doulamis' charge of sexual
discrimination based on her employer's alleged interference with
her union activities. International Union of Operating Engineers __________________________________________
v. Jones, 460 U.S. 669, 674 (1983).5 _____
B.Abstention B.Abstention
We turn now to what is in essence the threshold issue
in this appeal-whether the district court erred in abstaining
under the Younger doctrine. In Younger v. Harris, 401 U.S. 37 _______ _______ ______
(1971), the Supreme Court held that a federal court should not
enjoin a pending state criminal proceeding except in the very
unusual situation that an injunction is necessary to prevent
great and immediate irreparable injury. Younger stands for the _______
proposition that principles of comity require "a proper respect
for state functions, a recognition of the fact that the entire
country is made up of a Union of separate state governments, and
a continuance of the belief that the National Government will
fare best if the States are left free to perform their separate
functions in their separate ways." Id. at 44. The Court has __
since applied its reasoning in Younger to civil proceedings in _______
____________________
5 The dissent devotes a considerable number of pages to the
issue of whether Title VII and the NLRA provide concurrent
remedies. The Supreme Court has made clear however, that when a
state proceeding is claimed to be preempted by the NLRA under
Garmon, the issue is a choice-of-forum rather than a choice-of- ______
law question. See International Longshoremen's Association v. ___ _________________________________________
Davis, 476 U.S. 380, 391 (1986). As such, "it is a question _____
whether the State or the Board has jurisdiction over the
dispute." Id. If--as here--there is preemption under Garmon, __ ______
then state jurisdiction is extinguished. Id. See also, __ ___ ____
International Union of Operating Engineers v. Jones, 460 U.S. at ___________________________________________ _____
680-81; Sears, 436 U.S. at 199 n.29; Garmon, 359 U.S. at 245. _____ ______
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which important state interests are involved. See Huffman v. _______
Pursue, Ltd., 420 U.S. 592 (1975); Juidice v. Vail, 430 U.S. 327 ____________ _______ ____
(1977); Trainor v. Hern ndez, 431 U.S. 434 (1977). _______ _________
In Ohio Civil Rights Comm'n v. Dayton Christian ___________________________ _________________
Schools, 477 U.S. 619 (1986), the principles of comity first _______
announced in Younger were made extensive to state administrative _______
proceedings. As a result, where (1) vital state interests are
involved, (2) in an ongoing state judicial (or administrative)
proceeding, a federal court should abstain from exercising its
jurisdiction over a claim, (3) unless state law clearly bars the
interposition of the constitutional claims. See Middlesex County ________________
Ethics Comm. v. Garden State Bar Assn, 457 U.S. 423, 432 (1982); ____________ _____________________
Moore v. Sims, 442 U.S. 415 (1979). "The pertinent inquiry is _____ ____
whether state proceedings afford an adequate opportunity to raise
the constitutional claims." Middlesex, supra. _________
The dissent asserts that, rather than a principle of
discretionary deference, Younger abstention requires a district _______ ________
court to abstain whenever a case falls within the doctrine's
parameters. To the extent it relies on the Supreme Court's
decision in Colorado River Water Conservation District v. United ___________________________________________ ______
States, 424 U.S. 800, 816 n.22 as support for this blanket rule, ______
however, we respectfully differ. The cited passage on which the
dissent relies clearly refers to that category of cases where
federal jurisdiction has been invoked for the purpose of
restraining state criminal proceedings. And even for that ________
category of cases, the Supreme Court makes clear that abstention
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is only appropriate absent bad faith, harassment, or a patently
invalid state statute. Id. at 816. In fact, Colorado River __ _______________
strongly reaffirmed the basic principle that abstention from the
exercise of federal jurisdiction is the exception, not the rule:
The doctrine of abstention, under which a
district court may decline to exercise or ___
postpone the exercise of its
jurisdiction, is an extraordinary and
narrow exception to the duty of a
district court to adjudicate a
controversy properly before it.
Abdication of the obligation to decide
cases can be justified under this
doctrine only in the exceptional
circumstances where the order to the
parties to repair to the state court
would clearly serve an important
countervailing interest. It was never a
doctrine of equity that a federal court
should exercise its judicial discretion ________ ___ ________ __________
to dismiss a suit merely because a State
court could entertain it."
Colorado River, 424 U.S. at 813-14 (emphasis supplied; citations ______________
omitted). See also, New Orleans Public Service, Inc. v. Council ___ ____ ________________________________ _______
of the City of New Orleans, 491 U.S. 350, 359 (1989). __________________________
The Commission argues that the case at bar fits
squarely within the principles of Younger abstention. We _______
disagree. First, the procedural posture of this case differs
from that of the customary case where abstention is traditionally
applied. Ordinarily, federal courts abstain from the exercise of
jurisdiction over a particular controversy out of respect for an
ongoing state proceeding begun before the federal action. It is
thought that this procedural mechanism forestalls the friction
that can arise when the business of the two systems--state and
federal--overlaps. But the notion of comity, which to a great
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extent underlies the Younger doctrine of abstention, must _______
accommodate the legitimate interests of both the state and ____
national governments. Younger, 401 U.S. at 44; Pennzoil Co. v. _______ _____________
Texaco, Inc., 481 U.S. 1, 10 (1987). ____________
In abstaining, the court below seemingly focused on the
situation that existed on December 8, 1994, when Chaulk's
complaint for declaratory and injunctive relief was filed in the
United States District Court for the District of Massachusetts.
In doing so however, the court ignored the fact that an unfair
labor practice charge, based on the same facts underlying
Doulamis' complaint of sex discrimination, had been filed against
Chaulk prior to her discrimination claims and was pending before _____
the NLRB at the time of the filing of her action before the
Commission. In addition, shortly after Doulamis filed her
action, additional charges were filed by the Union, and the Board
continued to exercise its jurisdiction over these claims.
Federal courts seek to avoid needless conflict with
state agencies and withhold relief by way of injunction where
state remedies are available and adequate. Alabama Public _______________
Service Commission v. Southern Railroad Co., 341 U.S. 341 (1951). __________________ _____________________
But where Congress, acting within its constitutional authority,
has vested a federal agency with exclusive jurisdiction over a
subject matter and the intrusion of a state would result in a
conflict of functions, the federal court may enjoin the state
proceeding in order to preserve the federal right. American ________
Federation of Labor v. Watson, 327 U.S. 582, 593-95 (1946); ____________________ ______
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Bowles v. Willingham, 321 U.S. 503, 510-11 (1944); Public ______ __________ ______
Utilities Commission of Ohio v. United Fuel Gas Co., 317 U.S. _____________________________ ____________________
456, 468-70 (1943).
This case is similar to Freehold Cogeneration ______________________
Associates, LP v. Board of Regulatory Commissioners of New _______________ ____________________________________________
Jersey, 44 F.3d 1178 (3d Cir. 1995). In that case, Freehold ______
sought a declaratory judgment in the United States District Court
for the District of New Jersey that the Board of Regulatory
Commissioners of the State of New Jersey ("BRC") was preempted by
the Federal Public Utility Regulatory Policies Act ("PURPA") from
modifying the terms of a previously approved power purchase
agreement between Freehold and Jersey Central Power and Light
Company ("JCP&L"), a New Jersey public utility. Freehold also
sought an order enjoining the ongoing BRC proceedings. The
district court dismissed for lack of subject matter jurisdiction.
On appeal, one of the arguments raised by JCP&L was that the
federal court should abstain from resolving the merits of the
case even if it was found to possess subject matter jurisdiction.
The Third Circuit rejected the argument saying:
[O]ur concern is with carrying out a
federal statutory scheme promoting the
development of alternative energy
sources. The alleged intrusive action is
not by the federal government, but, on
the contrary, by a state regulatory
agency. We conclude that abstention is
not appropriate in this case and does not
warrant any extended discussion.
Freehold Cogeneration, 44 F.3d at 1187 n.6. As in Freehold, we _____________________ ________
are concerned here with carrying out a federal statutory scheme,
-19-
in this case one promoting the development of a uniform national
labor policy. The alleged intrusive action is not by the federal
government, but by the MCAD's purported regulation of conduct
within the NLRB's jurisdiction.
We note that in the particular context of this case,
the application of Younger abstention would result in significant _______
prejudice to Chaulk, who entered into a comprehensive settlement
agreement with the NLRB through which all unfair labor practice
claims were resolved, subject to Chaulk's compliance with the
conditions set forth therein, only to be faced with the prospect
of having to defend its actions once again, this time before a
state forum. Such an expansive interpretation of the abstention
doctrine would have the effect of encouraging duplicative
litigation, with the resultant waste of judicial and
administrative resources, as well as the danger to federal-state
relations that could result from conflicting adjudications.
Under these circumstances, where a federal agency with
primary jurisdiction over the controversy has already exercised
said jurisdiction, it would be inconsistent with the above
mentioned principles of comity and equal respect for the
interests of both the federal and state government for a federal
court to abstain on Younger grounds from deciding a claim _______
properly before it, in order to give way to a state
administrative action filed after the federal proceedings are _____
underway. Put simply, comity works both ways. ______ _____ ____ ____
The Commission nevertheless urges us to extend the
-20-
application of Younger and its progeny to the circumstances of _______
this case. To this end, MCAD argues that the facts before us
satisfy the relevant three part test set out by the Supreme Court
in Middlesex, 457 U.S. at 432. As it is however, even an _________
analysis of the case within this framework leads us to the same
conclusion. Abstention was improper in this case. We explain.
A number of courts have held that Younger abstention is _______
inappropriate where a claim of preemption is "facially
conclusive" or "readily apparent", because no significant state
interests are served when it is clear that the state tribunal is
acting beyond the lawful limits of its authority. Bud Antle, ___________
Inc. v. Barbosa, 35 F.3d 1355, 1365-66 (9th Cir. 1994), as ____ _______
amended by, 45 F.3d 1261, 1272-73 (9th Cir. 1994); Gartrell ________
Construction, Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir. ___________________ _____
1991)(citing Champion International Corp. v. Brown, 731 F.2d 1406 ____________________________ _____
(9th Cir. 1984); National R.R. Passenger Corp. v. Florida, 929 ______________________________ _______
F.2d 1532, 1537 n.12 (11th Cir. 1991)(citing Baggett v. _______
Department of Professional Registration, 717 F.2d 521, 524 (11th _______________________________________
Cir. 1983)); Southwestern Bell Tel. v. Ark. Public Service ________________________ _____________________
Commission, 824 F.2d 672, 673 (8th Cir. 1987); Kentucky W. Va. __________ _______________
Gas Co. v. Pennsylvania Pub. Util. Comm'n, 791 F.2d 1111, 1115 ________ _______________________________
(3d Cir. 1986). Chaulk asserts that the Commission is patently
acting beyond its jurisdictional boundaries and therefore, no
principle of comity precluded the district court from
entertaining its claim of preemption on the merits. In response,
the Commission cites the Supreme Court's decision in New Orleans ___________
-21-
Public Service, Inc. v. Council of the City of New Orleans, 491 ____________________ ___________________________________
U.S. 350 (1989) ("NOPSI") for the proposition that the mere
assertion of a substantial constitutional challenge to state
action, such as an argument of federal preemption engenders, will
not alone compel the exercise of federal jurisdiction. Whatever
the merits of MCAD's assertion however, even the NOPSI decision _____
leaves open the possibility that a "facially conclusive" claim of
preemption might render abstention inappropriate. Id. at 367. __
Consequently, we examine the merits of Chaulk's contention that
abstention is also inappropriate because preemption is readily
apparent in this context.
We have explained above the particularities of
Doulamis' claims before the Commission. She complains of
incidents of interference with her union activities as a union ____ ___ _____ __________ _____
organizer. We have observed that the very same conduct provides _________
the factual basis for the unfair labor practice charges brought
by the Union on her behalf. We have also highlighted the fact
that the NLRB incorporated these charges into a complaint and
notice of hearing claiming violations to sections 8(a)(1) and
8(a)(3) of the NLRA. As we have noted, her claims are
fundamentally grounded in an assertion that the rights which her
employer interfered with involve her union activity. _____ ________
Under these circumstances, were we to allow Doulamis'
state claims to go forward by simply artfully pleading her claim
of unfair labor practices as one motivated by a discriminatory
animus because of her gender, we would be compromising the NLRB's
-22-
role as chief arbiter of labor disputes. Indeed, there are few
unfair labor practices which could not be similarly repackaged.
Similarly aggrieved individuals could use such an opening to
bypass the NLRB merely by ascribing a myriad of discriminatory
motives to the relevant conduct (i.e. age, race, religious
belief, etc.), thereby creating a system of labor dispute
adjudication parallel to the NLRB, leaving the state and federal
courts to grapple piecemeal with issues Congress intended
primarily for NLRB resolution.
Faced with this particular factual scenario, we find
that under the Garmon doctrine it is "readily apparent" that the ______
Commission is acting beyond its jurisdictional authority by
entertaining Doulamis' complaint, for it is readily apparent that
Chaulk's conduct at issue is at least arguably prohibited by, and
thus subject to the NLRA. Accordingly, we hold that abstention
was inappropriate and that the district court abused its
discretion when it dismissed Chaulk's complaint on the basis of
Younger abstention. _______
III. CONCLUSION III. CONCLUSION __________
In sum, pursuant to the Garmon preemption doctrine, we ______
find that Ms. Doulamis' claims are preempted by the NLRA, thereby
depriving the MCAD of jurisdiction to entertain her action based
on gender discrimination. In addition, we find that abstention
was inappropriate in this case, as the principles of comity and
of equal respect for state and federal functions weighed against
such an abdication of federal jurisdiction over the present
-23-
controversy. Accordingly, Chaulk is entitled to injunctive
relief, consistent with this opinion.
Finally, with regard to MCAD's argument that the
Eleventh Amendment bars Chaulk's claims against the Commission,
we point out that the Supreme Court has recognized that the
Eleventh Amendment does not preclude properly pleaded actions
against state officials when the relief sought is prospective and
equitable in nature. See Ex Parte Young, 209 U.S. 123 (1908); ___ _______________
Will v. Michigan Department of State Police, 491 U.S. 58 (1989). ____ ___________________________________
We therefore reverse the judgment of the district court and
remand the case, so that Chaulk may address any pleading
deficiencies that currently preclude the continued prosecution of
its petition for relief.
Reversed and remanded. _____________________
LYNCH, Circuit Judge, dissenting. Because Congress has LYNCH, Circuit Judge, dissenting. _____________
clearly expressed its intent to allow state anti-discrimination
statutes to operate in areas such as this that may overlap with
the National Labor Relations Act ("NLRA"), Petrina
Doulamis/Sullivan's action is not, I believe, preempted. Because
the federal courts are being asked to enjoin the Massachusetts
Commission Against Discrimination ("MCAD") from hearing an
ongoing gender discrimination action over which the state agency
plainly has jurisdiction, I believe that abstention is
appropriate. I respectfully dissent.
Under San Diego Building Trades Council, Millmen's ________________________________________________
Union, Local 2020 v. Garmon, 359 U.S. 236 (1959), and its ___________________ ______
-24-
progeny, and in light of the clear congressional mandate under
Title VII, 42 U.S.C.A. 2000e to e-17 (West 1994 & Supp. 1995),
that state anti-discrimination statutes have authority over
claims for discrimination coextensive with Title VII, Doulamis'
MCAD claim coexists with and is not displaced by the federal
labor laws. The employer's defense here presents no "facially
conclusive" claim for preemption. See New Orleans Public ___ ____________________
Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, _____________ _______________________________
367 (1989). Garmon preemption is a question over which the state ______
courts have concurrent jurisdiction and Chaulk Services, Inc.
("Chaulk") will have a full and fair opportunity to present the
question to the Massachusetts courts. In my view, abstention is
required under Younger v. Harris, 401 U.S. 37 (1971). _______ ______
-25-
I.
Garmon says that "[w]hen an activity is arguably ______
subject to 7 or 8 of the [NLRA], the States as well as the
federal courts must defer to the exclusive competence of the
National Labor Relations Board ["NLRB"] if the danger of state
interference with national policy is to be averted." Garmon, 359 ______
U.S. at 245.6 Garmon also says that this principle is not ______
absolute. There is no need to defer to the NLRB where the
conduct at issue is of "peripheral concern" to federal labor
policy or where the state regulated activities touch "interests .
. . deeply rooted in local feeling and responsibility." Id. at ___
243-44.
The Massachusetts anti-discrimination statute touches
"interests so deeply rooted in local feeling and responsibility
that, in the absence of compelling congressional direction,
[courts cannot] infer that Congress [has] deprived the States of
the power to act." Garmon, 359 U.S. at 244. This is so whether ______
or not invidious discrimination in employment can be described as
being of "peripheral concern" to the NLRA. Cf. Massachusetts ___ _____________
Electric Co. v. Massachusetts Commission Against Discrimination, ____________ ________________________________________________
375 Mass. 160, 174 (1978) (employment discrimination of
peripheral concern to the NLRA); Walker Mfg. Co. v. Industrial ________________ __________
Commission, 27 Wis. 2d 669, 681 (1965) (age discrimination of __________
peripheral concern to Labor Management Relations Act).
____________________
6 Sex discrimination is not specifically addressed in the NLRA
and so it is not "clearly prohibited" by 8 or "clearly
protected" by 7 of the NLRA.
-26-
Originally enacted in 1946, the Massachusetts anti-discrimination
statute, Mass. Gen. L. ch. 151B, 1-10 (1994), is eighteen
years older than Title VII. See 1946 Mass. Acts 368. It ___
regulates conduct in employment in order to carry out the
Commonwealth's interest in ensuring that its workplaces are free
from particular categories of discrimination. It represents no
less an exercise of Massachusetts' police power than building
codes or fire regulations. The interests it protects are at
least as weighty as the interests sought to be vindicated in
actions the Supreme Court has specifically held not preempted by
Garmon. See Belknap, Inc. v. Hale, 463 U.S. 491 (1983) (breach ______ ___ ______________ ____
of contract and misrepresentation actions by replacement
workers); Farmer v. United Brotherhood of Carpenters and Joiners ______ _____________________________________________
of America, Local 25, 430 U.S. 290 (1977) (infliction of _______________________
emotional distress); Linn v. United Plant Guard Workers of ____ ________________________________
America, Local 114, 383 U.S. 53 (1966) (libel). __________________
That chapter 151B touches interests deeply rooted in
local feeling and responsibility is not disputed. Rather, the
majority asserts that Doulamis' claim is not really a sex
discrimination claim, describing Doulamis' claim as the product
of "artful[] pleading." With deference, I believe the record
establishes that Doulamis' claim is clearly one for sex
discrimination and has been treated as such by the MCAD.7
____________________
7 Doulamis' claim cannot be preempted simply because the case
arises from a labor dispute. The Supreme Court has squarely held
that Garmon preemption does not turn on whether a claim arises in ______
the context of a labor dispute. Linn, 383 U.S. at 63 ("Nor ____
should the fact that defamation arises during a labor dispute
-27-
On the facts as alleged, Doulamis has stated a claim
before the MCAD for sex discrimination under chapter 151B. She
asserts, inter alia: _____ ____
On November 10, 1993, I was harassed
about my union activity. I believe the
reason is because I am a female. The
males who are also involved are not being
harassed. Therefore, I charge Respondent
with unlawful discrimination against me,
in violation of M.G.L. Chapter 151B . . .
and Title VII . . . .
I believe that I am being single[d] out
by the Respondent because I am a female.
There are numerous other male union
organizers who are not being harassed.
That Doulamis asserts a bona fide sex discrimination
claim is buttressed by the underlying papers in the pleadings
submitted by Chaulk to the district court. Doulamis was
apparently a well-respected employee and was featured in Chaulk's
publicity materials. From the time she began working at Chaulk
in 1990 until the autumn of 1993, Doulamis received no written
warnings and no patient complaints. In the middle of 1993, the
International Association of EMTs and Paramedics began a union
organizing campaign at Chaulk. Although not initially involved,
Doulamis became involved in the campaign during the fall of 1993,
when she and Eric Burgess, a male Chaulk employee, wrote a letter
to the president of Chaulk's parent company calling for
organization of a union. On November 10, 1993, Doulamis was
called from a training session to meet with the CEO of Chaulk,
____________________
give the Board exclusive jurisdiction to remedy its
consequences.").
-28-
Nicholas O'Neil, and a vice president, Joseph Gilmore. The two
men told Doulamis at that meeting that she was "pretty" and that
they believed that the other employees at Chaulk would listen to
her because she was "pretty." They asked her to become a non-
union advocate, saying that her physical appearance would
persuade other employees to vote against the union. She refused.
Shortly thereafter, Doulamis began receiving a series of
harassing warnings from Chaulk management about her conduct on
the job and her union activities. Burgess, who had co-authored
the pro-union letter with Doulamis, did not receive such
harassment.
Doulamis believed that she was being singled out for
punishment for her union activities because of her sex. The ___________________
heart of her complaint before the MCAD was that she was being
harassed for her union activities while male union organizers --
including one who had co-authored the letter precipitating the
harassment -- were not (or at least were not until after Doulamis
filed her complaint with the MCAD). This allegation states a
prima facie claim of sex discrimination under chapter 151B. See ___
Ramsdell v. Western Massachusetts Bus Lines, Inc., 415 Mass. 673, ________ _____________________________________
679 (1993); see also Blare v. Husky Injection Molding Sys. ___ ____ _____ _______________________________
Boston, Inc., 419 Mass. 437 (1995). ____________
Under the facts of this case Doulamis could allege two
distinct wrongs -- a claim for unfair labor practices and a claim
for sex discrimination. Characterizing Doulamis' latter claim as
artful pleading assumes away the difficult legal question raised
-29-
by Doulamis' case and squarely presented in the briefs: whether
a sex discrimination claim based on state law is preempted if it
arises out of a course of events that also may give rise to an
unfair labor practice charge.
The Supreme Court in Sears, Roebuck & Co. v. San Diego ____________________ _________
County District Council of Carpenters, 436 U.S. 180 (1978), held ______________________________________
that even if a case may come within the scope of the Garmon ______
preemption doctrine when applied in a "mechanical fashion," id. ___
at 188, there is still no preemption over conduct arguably
prohibited by the NLRA unless the controversy before the state
court is identical to the dispute that could have been presented _________
under the NLRB. Id. at 197.8 Doulamis' MCAD claim is not ___
____________________
8 At issue in Sears was conduct that could be analyzed in two _____
distinct ways. The conduct was both "arguably protected" and
"arguably prohibited" by the NLRA. The Court drew a distinction
between those two categories of conduct (although in that case,
the same conduct happened to qualify as both) and imposed two
distinct lines of analysis. If the activity at issue is
"arguably protected," a finding of preemption is required where
an aggrieved party has a reasonable opportunity of invoking the
NLRB jurisdiction or of inducing his adversary to do so. Id. at ___
207. If an activity is "arguably prohibited," state jurisdiction
is preempted only if the issues presented to the state court are
identical to those that could be presented to the NLRB. The
latter rubric leaves much more room for state regulation. Id. at ___
200. Since sex discrimination is clearly not protected by the
NLRA, the conduct at issue in this case falls under the more
generous "arguably prohibited" rubric.
The majority appears to apply to this case criteria that Sears _____
made applicable to "arguably protected" conduct. For example, in
determining that the controversy here is identical to that which
could have been put to the NLRB the majority says, "[p]lainly
this is not a case where the NLRB declined to exercise its lawful
jurisdiction over a labor controversy, or where the NLRB's actual
exercise of jurisdiction remains a matter of speculation."
Majority Op. at typescript 12; see also Majority Op. at ___ ____
typescript 10 n.4. While this consideration is important to
cases involving "arguably protected" conduct, it is not to
-30-
identical to that which could have been heard by the NLRB.
To make out her claim on her chapter 151B action
Doulamis needs to show (1) a prima facie case of discrimination
and (2) "either that the employer's articulated reasons are a
pretext or by direct evidence that the actual motivation was
discrimination." Blare, 419 Mass. at 444. The action before the _____
NLRB could not have turned on such an inquiry. Further, the
terms of the employer's settlement agreement with the NLRB do not
establish that Doulamis' claim before the MCAD is not a bona fide
sex discrimination claim.9
On the alleged facts of this case -- where Doulamis and
Burgess were engaged in the same activity (co-authoring the
letter) -- the MCAD will not have to decide as a matter of law
whether one of the two was engaged in union activity, while the
other was not. In other words, insofar as Doulamis and Burgess
were doing the same thing (yet only one was harassed), the
____________________
"arguably prohibited" conduct.
9 There also seems to be an absence of record support for either
the proposition that the sex discrimination action was addressed
before the NLRB or the proposition that the settlement is
"comprehensive." The settlement agreement, dated March 22, 1995,
does not refer to alleged sex discrimination. Also, according to
its terms, the agreement applies "only [to] the allegations in
the above captioned cases and does not constitute a settlement of
any other cases or matters." The "above captioned cases" are
docket numbers "1-CA-31196, 31945(2), 32267, 32378, 32504, 32534,
32645, 32661." Only one of those docket numbers, 1-CA-31196,
filed December 9, 1993, involves Doulamis. Apparently not
included in the settlement are the other two claims that were,
according to Chaulk, made by Doulamis: docket numbers 1-CA-
31157, filed November 29, 1993, and 1-CA-31181-2, filed December
6, 1993.
-31-
question of whether the activities were protected union
activities cancels out of the equation.
This is why the MCAD, when presented with Chaulk's
claim of preemption, said:
In the Complainant's presentation of
her discrimination case before this
Commission, the 'merits' of the
underlying labor dispute need not be
resolved. It is not necessary for this
Commission to find that the Respondent
did, in fact, interfere with the
Complainant's efforts to organize union
activities; nor is it necessary for a
determination to be made regarding the
Respondent's anti-union animus, if one
should exist. Rather, the Complainant
must show that she was treated
dissimilarly by the Respondent, and that
the impetus for that dissimilar treatment
was due to her gender. It is neither the
role nor the goal of this Commission to
assess the catalyst of the Respondent's
actions. It is, however, this
Commission's purpose to ensure that such
actions are not gender motivated.
In the present case, the Commission may
decide the issue in dispute without
making a threshold determination of
whether the employer had interfered with
the employee's union activities. It need
only determine whether the treatment the
Complainant received, rightly or wrongly,
was different from that of her male
counterparts and motivated by her gender.
It is in this context that the MCAD's interrogatory
must be understood. While it is true that the MCAD has asked
Chaulk questions relating to union organizing activities (and has
perhaps shown insufficient sensitivity to the possible
jurisdictional problem), it has done so for the purpose of
determining factually whether Doulamis was treated differently
-32-
than men for doing the same thing, and not to define legally what
is or is not a union activity under the NLRA. As the MCAD has
recognized, Doulamis' sex discrimination claim exists
independently of any labor law claim. Chaulk's conduct was not
wrongful only by virtue of, or with reference to, the labor laws.
Cf. Tamburello v. Comm-Tract Corporation, No. 95-1295, slip op. ___ __________ ______________________
at 10-11 (1st Cir. October 2, 1995) (RICO claim preempted under
Garmon where reviewing court would be forced to decide whether ______
some portion of defendant's conduct violated federal labor laws
to determine whether the plaintiff had established a RICO
predicate act).10
The Sears inquiry suggests that the MCAD claim does not _____
fall within the scope of Garmon preemption. There is, however, ______
an even more compelling consideration that yields the same
conclusion. Of paramount importance in any preemption inquiry,
including one under Garmon, is congressional intent. See ______ ___
Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747 ___________________________ _____________
____________________
10 Significantly, particularly with respect to the Younger _______
issues raised in Part II, any issue concerning whether Doulamis
was or was not engaged in union activity will arise in this case,
if at all, by way of Chaulk's potential defense to the action --
that Doulamis was treated differently than Burgess and other male
organizers because the male organizers were engaged in protected
union activity, while Doulamis was not. The Supreme Court has
said in the analogous context of 301 preemption under the Labor
Management Relations Act that a defense of preemption is not even
a sufficient basis for removal of the action to federal court.
See Caterpillar Inc. v. Williams, 482 U.S. 386, 399 (1987) ("[A] ___ ________________ ________
defendant cannot, merely by injecting a federal question into an _________
action that asserts what is plainly a state-law claim, transform
the action into one arising under federal law, thereby selecting
the forum in which the claim shall be litigated.") (emphasis in
original).
-33-
(1985) (stating, in discussing NLRA preemption, including Garmon ______
preemption, that "as in any preemption analysis, [t]he purpose of
Congress is the ultimate touchstone") (internal quotations
omitted). If Congress has clearly evidenced its intent one way
or the other on the question of whether states may regulate an
area of conduct, federal courts must follow it. Congress has
clearly evidenced its belief that state anti-discrimination
statutes do not unduly interfere with federal labor policy.
Doulamis' claims not only come under chapter 151B but
also come within the scope of Title VII, 42 U.S.C.A. 2000e to
e-17 (West 1994 & Supp. 1995), and are within the jurisdiction of
the Equal Employment Opportunity Commission ("EEOC"). She has in
fact alleged a violation of Title VII and has indicated in her
MCAD complaint that she wishes to have her charges filed with the
EEOC.
The Supreme Court has said that the NLRA and Title VII
provide concurrent remedies. See Alexander v. Gardner-Denver ___ _________ ______________
Co., 415 U.S. 36, 47-48 (1974); see also Beverly v. Lone Star ___ ___ ____ _______ _________
Lead Construction Corp., 437 F.2d 1136, 1140 n.22 (5th Cir. _________________________
1971); cf. Britt v. Grocers Supply Co., Inc., 978 F.2d 1441, ___ _____ _________________________
1447 (5th Cir. 1992) ("[W]e have held that claims under Title VII
are not preempted by the NLRA. [Our] cases hold that a remedy is
available under both the NLRA and Title VII and recognize
concurrent jurisdiction between Title VII and the NLRA."
(footnote omitted)), cert. denied, 113 S. Ct. 2929 (1993); Morgan _____ ______ ______
v. Massachusetts General Hosp., 901 F.2d 186, 194 (1st Cir. 1990) ___________________________
-34-
("Clearly, if an employee has engaged in expression against
employer policies, even within the context of union activities,
which violate the Civil Rights Act, such as discriminatory
treatment of minorities or sexual harassment, and the employee
alleges discharge for that expression, section 704(a) [of the
Civil Rights Act] would be implicated for the narrow expression-
related claims.").11
Thus, even accepting the majority's view that the
factual basis for the sex discrimination claim provides the same
basis for the unfair employment practice claim and that the sex
discrimination claim is identical to that before the NLRB,
Doulamis is still entitled to pursue her claim under Title VII
before the EEOC. See Alexander, 415 U.S. at 47-48. Since the ___ _________
conduct prohibited by Title VII is nearly the same as that
proscribed by chapter 151B and Congress intended Title VII to
provide a concurrent remedy to the NLRA in areas of overlap, it
would be difficult to impute to Congress any hostility to the
enforcement of chapter 151B with respect to areas of potential
overlap with the NLRA.
There is, however, no need to rely on such a general
proposition in this case because Congress has affirmatively
stated in the language and through the structure of Title VII
itself that state anti-discrimination laws may provide a remedy
that overlaps with the NLRA. Not only did Congress affirmatively
____________________
11 It is clear also that jurisdiction is concurrent between the
EEOC and NLRB over claims that may fall within each statute. See ___
Beverly, 437 F.2d at 1140, n.22. _______
-35-
preserve the operation of state anti-discrimination laws in Title
VII, see 42 U.S.C.A. 2000e-7, but it made the state anti- ___
discrimination statutes an integral component of the Title VII
enforcement structure. See 42 U.S.C.A. 2000e-5(c) ("section ___
706(c)"). Section 706(c) of Title VII explicitly provides that
in states like Massachusetts (which have anti-discrimination
statutes and an agency charged with enforcing the state statute)
jurisdiction in the state administrative agency is exclusive for _________
the first 60 days after a claim is filed. See 42 U.S.C.A. ___
2000e-5(c).
The importance of state anti-discrimination statutes in
the enforcement scheme of Title VII was of major concern to
Congress in enacting Title VII. Isaac v. Harvard University, 769 _____ __________________
F.2d 817, 822 (1st Cir. 1985) ("The issue reflected in section
706(c), the relationship between federal and state remedies for
employment discrimination, received much attention throughout the
legislative process."). The legislative history shows that
section 706(c) of Title VII was enacted "'to keep primary,
exclusive jurisdiction in the hands of the State commissions for
a sufficient period of time to let them work out their own
problems at the local level.'" Id. (quoting 110 Cong. Rec. 13087 ___
(1964) (comments of Senator Dirksen)).12 It was critical to
____________________
12 The EEOC has recognized the importance of allowing state
anti-discrimination statutes to operate in order to effectuate
Congress' purposes for Title VII. See, e.g., 29 C.F.R. ___ ____
1601.13(a)(3)(i) (1995) ("In order to give full weight to the
policy of section 706(c) of title VII, which affords State and
local fair employment practice ["FEP"] agencies that come within
the provisions of that section an opportunity to remedy alleged
-36-
the passage of Title VII that the federal government initially
defer to the states in matters involving discrimination.
Moreover, Congress did not devise this enforcement structure
simply for administrative convenience (i.e., to avoid duplication
of effort). As this court has previously said, section 706(c)
"was first, and foremost, a statute of deference." Isaac, 769 _____
F.2d at 824; see also id. at 824 n.9 (citing Oscar Mayer & Co. v. ___ ____ ___ _________________
Evans, 441 U.S. 750 (1979) and stating that "[t]he Court's _____
implicit message appears to be that deference, and not
duplication, was at the heart of section 706(c)").13 And
Congress clearly had the NLRA in mind when it mandated this
principle of deference to the state anti-discrimination statutes.
See Alexander, 415 U.S. at 48 n.9 (quoting 110 Cong. Rec. 7207 ___ _________
(1964) (where Senator Joseph Clark, one of the sponsors of the
bill, introduced an interpretive memorandum specifically
mentioning the relationship between Title VII and the NLRA)).
If Congress believed that state anti-discrimination
statutes could not regulate coextensively with Title VII, then
perhaps preemption would be appropriate. But that is not the
case. Nothing in Title VII says that state anti-discrimination
____________________
discrimination concurrently regulated by title VII or the ADA and
State or local law, the Commission adopts the following
procedures with respect to allegations of discrimination filed
with the Commission.").
13 Under the EEOC's regulations the MCAD is not only a
designated FEP agency, see 29 C.F.R. 1601.74 (1995), but it is ___
a certified designated FEP agency, see 1601.80 (1995), to which _________ ___
the EEOC gives a higher level of deference than it otherwise does
to designated FEPs. See 29 C.F.R. 1601.75(a) (1995). ___
-37-
statutes cannot apply coextensively with Title VII. More
significantly, there clearly is nothing that says that the
exclusive jurisdiction of state administrative agencies under
section 706(c) is limited to cases under Title VII that do not
overlap with the NLRA.
It is possible to draw at least two conclusions
relevant to congressional intent from Title VII. First, Congress
affirmatively intended that state anti-discrimination statutes
would operate to regulate conduct covered by Title VII to the
same extent as Title VII itself and, thus, in areas that might
also be covered by the NLRA. Second, Congress could not have
intended to eliminate the operation of state anti-discrimination
statutes over claims covered by Title VII because that would
actively impair the operation of Title VII and frustrate the ______
enforcement scheme Congress envisioned. Not even ERISA
preemption, which is arguably much broader than Garmon ______
preemption, see Metropolitan Life Ins. Co. v. Massachusetts, 471 ___ ___________________________ _____________
U.S. 724, 747 (1985) (distinguishing ERISA preemption from NLRA
preemption by stating that ERISA preemption is statutorily
mandated), allows preemption where it would impair the operation
of Title VII. See Shaw v. Delta Airlines, Inc., 463 U.S. 85, 102 ___ ____ ____________________
(1983) (where ERISA preemption of a state anti-discrimination
statute would impair the operation of Title VII, there is no
preemption). The reasonable conclusion is that Congress intended
to allow state anti-discrimination statutes to overlap with the
NLRA.
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The Supreme Court's decision in Alexander v. Gardner- _________ ________
Denver Co., 415 U.S. 36 (1974), reinforces this conclusion. In __________
Alexander the Court was called upon to determine the relationship _________
between the federal courts and the grievance-arbitration
machinery of collective bargaining agreements in the resolution
and enforcement of an individual's rights under Title VII. There
an employee had a claim for discrimination that was clearly
covered by a collective bargaining agreement.14 At issue was
whether the employee's remedies provided in the collective
bargaining agreement (and subject to arbitration) precluded a
suit in federal court based on Title VII.15 The Court
unanimously held that it did not, saying:
[L]egislative enactments in this area
have long evinced a general intent to
accord parallel or overlapping remedies
against discrimination. In the Civil
Rights Act of 1964, 42 U.S.C. 2000a et __
seq., Congress indicated that it ____
considered the policy against
discrimination to be of the "highest
priority." Newman v. Piggie Park ______ ____________
Enterprises, [390 U.S. 400, 402 (1968)]. ___________
Consistent with this view, Title VII
provides for consideration of employment-
discrimination claims in several forums.
See 42 U.S.C. 2000e-5(b) (1970 ed., ___
Supp. II) (EEOC); 42 U.S.C. 2000e-5(c)
(1970 ed., Supp. II) (state and local ________________
agencies); 42 U.S.C. 2000e-5(f) (1970 ________
ed., Supp. II) (federal courts). And, in
general, submission of a claim to one
____________________
14 The right to bargain collectively is, of course, an NLRA
conferred right. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, ____________________ _____
213 n.8 (1985).
15 In Alexander, as here, there had been no waiver of statutory _________
rights. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. ___ ______ ______________________________
20, 35 (1991).
-39-
forum does not preclude a later
submission to another. Moreover, the
legislative history of Title VII
manifests a congressional intent to allow
an individual to pursue independently his
rights under both Title VII and other _____
applicable state and federal statutes. _____________________________________
Alexander, 415 U.S. at 47-48 (emphasis supplied; footnotes _________
omitted);16 see also Brown v. Hotel and Restaurant Employees ___ ____ _____ ________________________________
and Bartenders Intern. Union, Local 54, 468 U.S. 491 (1984).17 ______________________________________
____________________
16 The Court has applied a similar analysis in analogous
situations. See Lingle v. Norge Division of Magic Chef, Inc., ___ ______ ___________________________________
486 U.S. 399, 412 (1988) (suggesting that " 301 does not preempt
state anti-discrimination laws, even though a suit under these
laws, like a suit alleging retaliatory discharge, requires a
state court to determine whether just cause existed to justify
the discharge." (citation omitted)); Colorado Anti-Discrimination ____________________________
Commission v. Continental Air Lines, Inc., 372 U.S. 714, 724 __________ ____________________________
(1963) (rejecting a claim that a state anti-discrimination law
was preempted by the Railway Labor Act, which is similar to the
National Labor Relations Act).
17 At issue in Brown was whether 86 and 93 of the New Jersey _____
Casino Control Act (which set qualifications for union officials)
were preempted by 7 of the NLRA. It was argued that the New
Jersey statute was preempted because it interfered with the right
protected under 7 of employees to choose their union officials.
The Supreme Court held that 7 did not completely preempt 86
and 93 of the New Jersey statute. In the Court's view, Congress
had, through the passage of the Labor-Management Reporting and
Disclosure Act ("LMRDA"), disclaimed any intent to pre-empt all
state regulation which touched upon the specific right of
employees to decide which individuals will serve as officials of
their bargaining representatives. The LMRDA had imposed, in
504(a), federal qualification standards for union
representatives. Because the LMRDA affirmatively preserved the
operation of state laws in 603 and made 504(a) itself
dependent in part on state laws for its enforcement, the Court
held that state laws could impose their own similar qualification
standards on union officials. Id. at 509. ___
Brown is highly instructive on the type of approach required _____
for this case. In Brown, the Court focussed on the indicia of _____
congressional intent that could be found not just in the NLRA,
but also in a parallel federal statute. The parallel federal
statute there specifically reserved a place for state regulation
over the conduct coming within its scope. While the LMRDA does
-40-
National labor relations policy does not begin and end
with the NLRA. Title VII is as much a part of the network of
labor relations law as is the NLRA. Where Congress has so
clearly indicated that state anti-discrimination laws are to
operate hand in hand with Title VII (indeed, for a limited period
to the exclusion of Title VII) it is difficult to conclude
Congress intended preemption under the circumstances here. In
the words of Garmon, preemption should not be found absent ______
"compelling congressional direction." Garmon, 359 U.S. at 244. ______
Here, all the congressional direction is to the effect that state
anti-discrimination statutes may supplement federal laws,
including federal labor laws, and Garmon preemption is therefore ______
inappropriate.
II.
Having stated my disagreement with the view that
Doulamis' sex discrimination claim is preempted by the NLRA, I
consider what perhaps may be a conceptually prior issue, the
issue of abstention. By seeking an injunction against the state
proceedings, Chaulk has effectively asked the federal court to
enjoin the state courts from deciding the Garmon issue. Thus, ______
the potentially dispositive question, apart from whether Garmon ______
preemption is appropriate, is whether this federal court should
____________________
not bear on this case, Title VII does, and Title VII makes clear
that Congress intended federal and state regulation of
discrimination to overlap. The differences between Brown and _____
this case do not affect the central instruction of Brown: that a _____
federal court must defer to congressional intent in making any
preemption analysis, even one involving the NLRA and even if it
is expressed in another federal statute.
-41-
bar the state fair employment agency from hearing this claim and
so bar Massachusetts state courts from deciding the Garmon issue ______
themselves, or, to the contrary, abstain from decision and allow
the state agency and courts to proceed. As with the preemption
issue, this issue is difficult, but on balance I would hold here
under Younger v. Harris, 401 U.S. 37 (1971), and its progeny, _______ ______
that abstention is appropriate.
Younger prevents interference with pending state _______
administrative proceedings if they are of a judicial nature,
implicate an important state interest, and provide the federal
plaintiff an adequate opportunity to litigate his constitutional
claim. Ohio Civil Rights Commission v. Dayton Christian Schools, ____________________________ _________________________
Inc., 477 U.S. 619, 627 (1985). Although Chaulk claims that ____
Younger abstention is a principle of "discretionary deference," _______
the Supreme Court has stated that where a case falls within the
Younger parameters, a district court has no discretion to provide _______
injunctive relief and must abstain. See Colorado River Water ___ _____________________
Conservation District v. United States, 424 U.S. 800, 816 n.22 _____________________ _____________
(1976) ("Where a case is properly within [the Younger] category _______
of cases, there is no discretion to grant injunctive relief.");
see also Sun Refining & Marketing Co. v. Brennan, 921 F.2d 635, ___ ____ _____________________________ _______
639 (6th Cir. 1990) ("[U]nlike other forms of abstention, when a
case is properly within the Younger category of cases, there is _______
no discretion on the part of the federal court to grant
injunctive relief."); Seneca-Cayuga Tribe v. State ex rel. ____________________ _______________
Thompson, 874 F.2d 709, 711 (10th Cir. 1989) (Younger abstention ________ _______
-42-
not discretionary once conditions are met, absent extraordinary
circumstances that render a state court unable to give litigants
a full and fair hearing on their federal claims).18
There is no question that the MCAD proceedings were
ongoing at the time Chaulk's district court complaint was filed,
see Bettencourt v. Board of Registration in Medicine, 904 F.2d ___ ___________ __________________________________
772, 777 (1st Cir. 1990) (in determining interference "the proper
point of reference is the date plaintiff filed his federal
complaint"), and that the proceedings are judicial in nature.
See Dayton Christian Schools, 477 U.S. at 629 (finding Ohio Civil ___ ________________________
Rights Commission proceedings sufficiently judicial in nature).
The significant questions here are whether the state interest in
deciding sex discrimination claims is important and whether there
will be an adequate opportunity for Chaulk to raise the Garmon ______
preemption question in the Massachusetts state forum.
The Supreme Court has said that remedying sex
discrimination is a sufficiently important state interest to
trigger Younger. See Dayton Christian Schools, 477 U.S. at 628 _______ ___ ________________________
("We have no doubt that the elimination of prohibited sex
discrimination is a sufficiently important state interest to
bring the present case within the ambit of [Younger and its _______
progeny]."). Although Chaulk has suggested that there can be no
significant state interest in this case because it is preempted,
____________________
18 The majority quarrels with this proposition stating that the
Colorado River case was discussing criminal cases. Colorado _______________ ________
River, however, was discussing Younger abstention and Younger _____ _______ _______
clearly applies to non-criminal state administrative proceedings.
See Dayton Christian Schools, 477 U.S. at 627 & n.2. ___ ________________________
-43-
such an argument, I believe, is most likely foreclosed by New ___
Orleans Public Service, Inc. v. Council of City of New Orleans, ____________________________ _______________________________
491 U.S. 350, 365 (1989) ("NOPSI"). In NOPSI the Court said that _____ _____
in determining the importance of the state interest courts should
"not look narrowly to its interest in the outcome of the
particular case -- which could arguably be offset by a
substantial federal interest in the opposite outcome." Id. ___
Courts rather must look to the "importance of the generic
proceedings to the State." Id. (citing Dayton Christian ___ _________________
Schools). As Dayton Christian Schools made explicit, _______ ____________________________
Massachusetts has a legitimate and important state interest in
preventing sex discrimination. Thus the important state interest
prong of Younger is satisfied in this case. _______
Where there is an important state interest, the Supreme
Court has noted that a federal court should abstain unless state
law clearly bars the interposition of the federal plaintiff's
constitutional claim. Middlesex County Ethics Committee v. ___________________________________
Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). Here, we have ______________________
no reason to doubt that the Massachusetts state courts will
provide Chaulk with a full and fair opportunity to raise the
Garmon preemption question. Chaulk raised the preemption ______
argument before the MCAD and will have a further opportunity to
pursue it before the Massachusetts appellate courts. Dayton ______
Christian Schools, 477 U.S. at 629 ("[I]t is sufficient . . . _________________
that constitutional claims may be raised in state-court judicial
review of the administrative proceeding.") (citation omitted).
-44-
If federal law barred the Massachusetts state courts
from deciding the Garmon preemption question, then the "adequate ______
opportunity" prong would not be met. Indeed such a proposition
appears to be at the heart of Chaulk's argument. Chaulk argues:
"[W]here conduct is arguably protected or prohibited by the NLRA,
jurisdiction over that conduct is preempted in the labor context
and is exclusively federal. The determination of whether the __________________________________
case arguably falls within the preempted field is also to be made _________________________________________________________________
by the federal courts, not State courts or State tribunals" ________________________________________________________________
(emphasis supplied).
But that proposition is untenable and inconsistent with
the Supreme Court's case law. Although state courts may be
deprived of jurisdiction to decide a case once it is preempted ____
under Garmon, they are not deprived of jurisdiction to decide ______
whether a case is so preempted. State courts have concurrent _______
jurisdiction to decide federal preemption issues. See Chick Kam ___ _________
Choo v. Exxon Corp., 486 U.S. 140, 149-50 (1988) ("[W]hen a state ____ ___________
proceeding presents a federal issue, even a pre-emption issue,
the proper course is to seek resolution of that issue by the
state court."); see also Turnbow v. Pacific Mut. Life Ins. Co., ___ ____ _______ ___________________________
934 F.2d 1100, 1103 (9th Cir. 1991) (no jurisdictional bar to
state court deciding ERISA preemption question); Sun Refining & ______________
Marketing Co. v. Brennan, 921 F.2d 635, 641 (6th Cir. 1990) ______________ _______
(discussing possibility of Younger abstention question in _______
situation involving state action that was arguably subject to the
exclusive jurisdiction of Occupational Safety and Health
-45-
Administration ("OSHA") and stating, "it is undisputed that
concurrent jurisdiction exists in the Ohio state courts to decide
the federal pre-emption issue").
Garmon preemption is no exception to this principle. ______
Cf. International Longshoremen's Ass'n, AFL-CIO v. Davis, 476 ___ _____________________________________________ _____
U.S. 380, 393 (1985) ("when a claim of Garmon preemption is ______
raised [in state court], it must be considered and resolved by _______________________________________
the state court" (emphasis supplied)). Because the Massachusetts _______________
state courts have concurrent jurisdiction to decide the Garmon ______
preemption issue, Chaulk will have an adequate opportunity to
raise its Garmon preemption claim in the Massachusetts courts, ______
and thus the "adequate opportunity" prong of Younger is also met _______
here.
Perhaps recognizing that Younger applies to this case, _______
Chaulk has argued that preemption cases should be treated
differently than typical Younger abstention cases. It says that _______
"[t]he real issue in this case is whether a doctrine of comity
should be applied in a Garmon preemption case." It argues that ______
treating this case under Younger "confuses two federal concepts _______
which are rooted in very different soil"; and that while Younger _______
"is predicated upon discretionary deference by the federal
government to fundamental State interests," preemption "is
mandatory and arises under the Constitution, specifically, the
Supremacy Clause." According to Chaulk "[t]o elevate the
equitable doctrine of abstention over the Constitutional doctrine
of preemption would truly be to elevate form over substance."
-46-
Whatever the merits of Chaulk's argument in theory, the
Supreme Court has apparently rejected it. In NOPSI the Court _____
said that preemption issues do not involve a greater federal
interest than other constitutional challenges:
There is no greater federal interest in
enforcing the supremacy of federal
statutes than in enforcing the supremacy
of explicit constitutional guarantees,
and constitutional challenges to state
action, no less than pre-emption-based
challenges, call into question the
legitimacy of the State's interest in its
proceedings reviewing or enforcing that
action. Yet it is clear that the mere
assertion of a substantial constitutional
challenge to state action will not alone
compel the exercise of federal
jurisdiction. . . . [P]reemption-based
challenges merit a similar focus . . . .
Id. at 365. Thus, courts are to analyze Younger abstention cases ___ _______
involving preemption claims no differently than any other Younger _______
abstention case, see Sun Refining, 921 F.2d at 639, and even a ___ ____________
substantial claim of federal preemption is not sufficient to
overcome Younger. See NOPSI, 491 U.S. at 365-66.19 _______ ___ _____
____________________
19 A distinction exists between preemption involving a choice of
forum and preemption involving a choice of law. Cf. Violette v. ___ ________
Smith & Nephew Dyonics, Inc., 62 F.3d 8, 11 (1st Cir. 1995) ______________________________
(choice of forum preemption is jurisdictional and cannot be
waived, while choice of law is not and may be waived). The
argument might be made that because Garmon involves choice of ______
forum preemption there is a greater federal interest to protect
than in a case involving choice of law and that, accordingly,
abstention here might not be appropriate here even if abstention
for choice of law preemption would be. NOPSI, however, says that _____
the federal interest is not to be weighed against the state
interest. See Sun Refining, 921 F.2d at 641. Thus even if the ___ ____________
federal interest in Garmon preemption is weightier than in choice ______
of law preemption cases, that consideration does not affect the
Younger inquiry; abstention is appropriate as long as an _______
important state interest is identified and the other requirements
are met. See Middlesex County, 457 U.S. at 431-32; Sun ___ ________________ ___
-47-
The exception to Younger that provides that abstention _______
may be improper where the plaintiff might suffer irreparable
injury absent equitable relief is not applicable here. A
sufficient risk of irreparable injury may exist where the
challenged state statute is "flagrantly and patently violative of
express constitutional prohibitions. . . ." Younger, 401 U.S. at _______
53-54. But chapter 151B is hardly flagrantly unconstitutional
and, given the complexities of the preemption question, it is
difficult to describe the MCAD's actions as flagrantly or
patently violative of the Garmon preemption principle. ______
Further, although the Supreme Court in NOPSI left open _____
the question of whether a "facially conclusive" claim for
preemption might fall within the exception to Younger, see NOPSI, _______ ___ _____
491 U.S. at 367, the preemption claim here is not facially
conclusive. For Chaulk's preemption claim to be facially
conclusive the federal courts must be able to determine the state
action is preempted "without further factual inquiry." Id. ___
Chaulk cannot meet this standard.
The MCAD has not sought directly to regulate unfair
labor practices nor has it questioned the authority of the NLRB
to adjudicate the unfair labor practices claim. Cf. NOPSI, 491 ___ _____
U.S. at 367. It has in fact said that "the issue of union
interference is properly left to the provinces of the NLRB."
Neither has it challenged the non-admission settlement agreement
that Chaulk has entered, nor does it appear that the MCAD action
____________________
Refining, 921 F.2d at 641. ________
-48-
will undermine that agreement.20 Even if there were reason to
doubt whether Doulamis has a bona fide claim for sex
discrimination or whether the MCAD should adjudicate the dispute,
it would be impossible "conclusively [to] say [the MCAD] is wrong
without further factual inquiry -- and what requires further
factual inquiry can hardly be deemed 'flagrantly' unlawful for
purposes of a threshold abstention determination." NOPSI, 491 _____
U.S. at 367.21
Finally, the fact that the union filed a complaint with
the NLRB before Doulamis filed her complaint before the MCAD does
not resolve the matter.22 To begin with, Chaulk never raised
____________________
20 There is nothing in the record to show that the NLRB even
considered Doulamis' claims for sex discrimination in the context
of the unfair labor practice charges. Moreover, the settlement
agreement itself "does not preclude persons from filing charges,
the General Counsel from prosecuting complaints, or the Board and
the courts from finding violations with respect to matters which __________
precede the date of the approval of this Agreement regardless of
whether such matters are known to the General Counsel or are
readily discoverable" (emphasis supplied).
21 There may be situations in which the preemption claim could
be facially conclusive and abstention would not be appropriate.
For example, this case would be viewed quite differently had
Doulamis alleged before the MCAD that the discrimination Chaulk
engaged in was simply based on her potential affiliation in the
union, as opposed to her gender. In such a case, the question
whether the claim was within the exclusive jurisdiction of the
NLRA would not turn on deciding whether her claim was a case of
artful pleading. No more facts would need be determined and
under such circumstances abstention would probably not be
appropriate. Moreover, were the MCAD to assert jurisdiction
under such circumstances, there would be a good argument that the
MCAD was behaving in flagrant disregard of the Garmon preemption ______
principle.
22 Although Doulamis' complaint before the MCAD was filed on
December 1, 1993 the proceedings before the MCAD began on
November 23, 1993 when Doulamis underwent her intake interview.
-49-
such a theory as a basis to prevent abstention. Its initial
brief, its reply brief, and the supplemental letter memorandum
requested by the panel at oral argument are devoid of any
argument that abstention is inappropriate because the NLRB
proceeding was pending at the time of the MCAD complaint. It is
therefore waived. See Grella v. Salem Five Cent Savings Bank, 42 ___ ______ ____________________________
F.3d 26, 36 (1st Cir. 1994).
Moreover, there does not appear to be case law squarely
supporting such a theory. Indeed, such a theory of abstention
appears to be at odds with the treatment of the issue in at least
one other circuit. See Sun Refining, 921 F.2d at 639-42 ___ _____________
(abstention was appropriate despite claim that the state law
action violated the exclusive jurisdiction of OSHA and despite
fact that OSHA action had been pending and concluded months
before the state action was brought). As a matter of policy, the
existence of a NLRB action at the time a parallel state
proceeding is filed should not control the matter here. The
NLRB, if it so chose, could have sought an injunction against the
state proceedings if it thought the state proceedings conflicted
with its exclusive jurisdiction. NLRB v. Nash-Finch Co., 404 ____ _______________
U.S. 138, 142-44 (1971).23 The fact that the NLRB did not so
____________________
23 Even the cases cited for the proposition that a federal court
may enjoin a state court's intrusion into a federal agency's
exclusive jurisdiction do not stand for such a broad proposition.
In the only labor case cited, American Federation of Labor v. _____________________________
Watson, 327 U.S. 582 (1946), the court specifically said that for ______
such an injunction to issue there must be an immediate threat of
irreparable injury, such as an "imminent threat to an entire
system of collective bargaining." Id. at 595. No comparable ___
threat exists here. In fact, in Watson the Court explicitly said ______
-50-
move speaks volumes.
I respectfully dissent.
____________________
that the threat of multiple prosecutions under the state law
would not be sufficient to justify an injunction. See id. The ___ ___ ___
Court also abstained under the doctrine of Railroad Commission of _________ ______________________
Texas v. Pullman Co., 312 U.S. 496 (1941). See id. at 599. _____ ___________ ___ ___
-51-