concurring in part and dissenting in part.
In my judgment the majority does not adequately deal with the complex issues raised in this preemption case, and it applies an overbroad preemption doctrine to deny the plaintiffs their rights under state law. Moreover, I do not understand from the majority opinion what part of the plaintiffs’ claims the majority is remanding for reconsideration or precisely what it expects the District Court to do on remand. I do not understand what is to be done because the Court does not make clear what part of the plaintiffs’ sex discrimination claims are preempted and what part are not preempted.
Defendant Local 299 appeals the District Court’s $365,334.23 judgment in favor of female union members who brought suit under Michigan’s Elliott-Larsen Civil Rights Act for sex discrimination. The union’s appeal challenges the decision of the District Court on four grounds, none of which are adequately discussed in the Court’s opinion. First, the union argues that the District Court abused its discretion by retaining jurisdiction over the pendent state law claims after the federal claims were dismissed.1 The union’s second argument is that the District Court misapplied the Elliott-Larsen Act. The union’s next claim is that federal labor law preempts Michigan’s Elliott-Larsen Act in this case. And finally, the union claims that the District Court erred by reaffirming its prior judgment instead of instituting a new judgment which would incorporate plaintiffs’ settlement with Cassens Transport.
I. Factual Background and Proceedings Below
Plaintiffs, five women, were office clerical workers at the Detroit terminal of the Square Deal Cartage Co., a company engaged in the transportation of new automobiles to local dealerships. In August 1977, Square Deal was purchased by Cassens Transport, Inc., another company in the same industry. Plaintiffs were not retained by Cassens after the takeover. Square Deal’s driver, yard, and garage workers, all of whom are male, were retained by Cassens. The defendant, a local Teamsters union, represented the clerical *865as well as the driver, yard, and garage workers.
When they worked at Square Deal, the driver and yard workers had the same seniority list, but the garage and office workers each had a separate list. At the time of the merger, Cassens had drivers and yard workers on separate seniority lists represented by the same local union, but Cas-sens had no garage workers and had only non-union office workers at its company headquarters in Illinois. In an effort to prevent any seniority and “bumping” problems as a result of the merger, the Central Southern Conference Automobile Transporters Joint Arbitration Committee recommended that Square Deal’s drivers and yard workers be given an opportunity to bid on either driver or yard jobs at Cas-sens, and that Cassens should then prepare driver and yard workers seniority lists for the merged company, dovetailing the two companies’ drivers and yard workers according to their respective years of service at either company. Office workers were not allowed to bid on non-office jobs, however, regardless of their accrued seniority. As a result, plaintiffs were left jobless by the merger.
In early 1978, four plaintiffs filed against Cassens unfair labor practice charges with the NLRB and Title VII sex discrimination charges with the EEOC. The EEOC issued right to sue notices against Cassens on January 22, 1979. None of the plaintiffs filed unfair labor practice or Title VII charges against the union with the NLRB or the EEOC. They settled their unfair labor practice case against Cassens.
On November 13, 1978, plaintiffs filed a complaint in the Circuit Court of Wayne County, Michigan, alleging a state claim and a federal claim. They alleged that Cassens and the Union had violated Michigan’s Elliott-Larsen Civil Rights Act, Mich. Comp.Laws Ann. § 37.2101 et seq. (1983), and that the union had violated Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, by breaching its duty of fair representation. The union removed the case on November 30, 1978, to the United States District Court for the Eastern District of Michigan. Plaintiffs then filed an amended complaint in which they alleged that Cassens and the Union had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The District Judge held that both Cas-sens and the union had violated Title VII and the Elliott-Larsen Civil Rights Act and that the union had breached its duty of fair representation. After the District Court issued its damages award in the amount of $365,334.23, both defendants appealed to this Court. Cassens settled its case and dismissed its appeal. Jones v. Cassens Transport, 538 F.Supp. 929 (E.D.Mich.1982).
After the Cassens settlement, proceedings against the union continued. On appeal, a panel of this Circuit dismissed the federal claims against the union. See Jones v. Truck Drivers Local Union No. 299, 748 F.2d 1083 (6th Cir.1984). The Title VII claim was dismissed because of plaintiffs’ failure to file an EEOC charge against the union, and the unfair representation claim was dismissed on the statute of limitations as established by DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). This Court remanded the case to the District Judge for additional findings of fact and conclusions of law on the remaining Elliott-Larsen Act claims. On remand, the District Judge considered additional briefs on the state law cause of action but did not substantially alter her first opinion. The union was again found liable for sex discrimination under the state statute. Jones v. Cassens Transport, 617 F.Supp. 869 (E.D.Mich.1985).
The factual findings made by the District Court fall into two broad categories. The first relates to the District Court’s construction of the seniority provisions of the collective bargaining agreement and its conclusion that the plaintiffs were entitled to continued employment with Cassens after the merger. The union argued as a defense that the difference in treatment of the plaintiffs as a group resulted from the neutral application of a bona fide seniority system based on custom and practice in the *866industry, and not from gender-based discrimination. The District Court, however, found this argument “to be utterly without merit” based on its own interpretation of the seniority provisions. Jones, 617 F.Supp. at 886. “Defendant not only was not required by any seniority system to discriminate against plaintiffs as it did; but in fact it discriminated in violation of the applicable contract seniority provisions.” Id. The Court also took issue with the use of separate seniority lists: “[t]hey utilized one list which was unique in treating two different all-male classifications as one while excluding a third (female) classification from that benefit; and they did so in violation of every applicable contract clause and of the arbitral decision. . . .” Id. at 876.
The second group of factual findings concerns other, non-contractual evidence of discrimination. The District Court found that the union engaged in a pattern of discriminatory conduct: repeatedly refusing to negotiate with Cassens for the plaintiffs’ jobs, id. at 877-82; making misleading statements to the female members about their rights and the zeal with which the union was protecting those rights, id. at 878, 882; failing to inform or consult the female members about the effects of the merger or seniority grievance procedures, id. at 877-78; and using segregated seniority lists to prevent women from competing with men for existing or new positions, id. at 883. Based on these facts, the Court further found as follows:
The credible facts of record here clearly demonstrate that, in competition for the better jobs historically[,] and for any jobs at the end, the plaintiff women were the victims of intentionally disparate and less favorable treatment than the similarly situated male employees at Square Deal whom this union represented. Both the union and employer intentionally discriminated against them, albeit for somewhat different reasons. Employer management, in the person of Messrs. Jones and Shashek, had a sex-based animus against female workers on the premises. The union pandered to that animus in its zeal to represent its male members (and even male outside applicants for jobs) at the expense of the women, whom it considered to be no more than an auxilary [sic] to the real bargaining unit, and a source of unobli-gated dues for twenty years.
>¡< >¡s * * # *
The local union’s actions were based upon invidious sex discrimination and no other reason. The union agreed with the employer that women did not belong in the yard and further, it was the position of the chief union operative, Holsinger, that the job security of the women, because of their sex, was a matter of less weighty concern than that of men.
Id. at 882-83. With these facts in mind, we turn to the legal issues raised by this case.
II. The EIliott-Larsen Act
The union’s first claim is that the District Court misapplied Michigan’s EIliott-Larsen Act, Mich.Comp.Laws Ann. §§ 37.-2101-2804 (1985). The District Court found the union liable for violating the specific terms of § 37.2204(a)-(d), which deals with discrimination by a union against its membership.2 Under the bur*867den-shifting analysis incorporated into the Elliott-Larsen Act from Title VII, the District Court found that the plaintiffs proved a prima facie case of discrimination which the defendant did not rebut by offering nonpretextual, nondiscriminatory reasons. The union claims that § 211 of the Elliott-Larsen Act, which exempts disparate treatment that results from a bona fide seniority plan, provides a defense to plaintiffs’ prima facie case.
It is clear from the record that plaintiffs have indeed shown a prima facie ease of discrimination by the union. The attitudes exhibited by the union officials reveal a pervasive gender bias that manifested itself in an unwillingness to represent the female office workers. The second category of factual findings which were described above amply illustrates this discrimination. I find the District Court’s factual finding of discriminatory animus on the part of the union to be supported by the testimony and circumstantial evidence in the case.
Whether the union’s seniority defense is sufficient to rebut the plaintiffs’ prima fa-cie case is a more difficult question. The union contended that the plaintiffs lost their jobs through the neutral operation of the seniority system, not discrimination by the union. The District Court, however, undertook its own examination of the seniority provision and determined that the plaintiffs would not have lost their jobs under the seniority system if it had been properly applied; therefore, the union could not claim the seniority system as a defense.
In my view the District Court erred in its construction of the seniority system applicable to the Square Deal/Cassens merger. To understand the operation of that system it is necessary to understand each of its component parts. The first level of seniority provided for office workers by the agreement is “terminal seniority.” Terminal seniority allows an office worker to bid for jobs available in his or her bargaining unit within a particular terminal. See National Master Automobile Transporters Agreement, Michigan Office Workers Supplement, Article 38, § 2 (“NMATA Supplement”). It is important to note that since office workers were restricted to a separate bargaining unit, terminal seniority could only be used to secure office work. “Company seniority” reflected an employee’s seniority within the entire company, rather than within just a particular jobsite. In the event of layoffs at a particular job-site, a senior employee could exercise seniority rights to gain employment at a different office, at the expense of the junior employee holding that other job. As with terminal seniority, however, office workers exercising company seniority could only bump other office workers; they could not “cross-bump” junior workers from the non-office bargaining units. See NMATA Supplement, Article 39, § 3.
Article 5, § 1 of the National Master Automobile Transporters Agreement provides a procedure to combine seniority lists in the event of a merger. This section mandates “dovetailing” of the terminal seniority lists of the two merging entities. The District Court read this section to require that one list be prepared for each company, with that list ranking employees by their seniority without regard to their bargaining unit. The effect would be to abolish the historic segregation of lists by job classification. Under this reading, an office worker with 15 years seniority could cross-bump a non-office worker with less seniority. Since this clearly would not be possible in the absence of a merger because of the clear language of Article 39, §§ 2-3 of the NMATA Supplement, the District Court must ha\re found that the merger provision contemplated lumping all employees into one group regardless of their former bargaining unit with the effect of allowing cross-bumping.
The District Court erred in its construction of the merger provision. The provision itself contemplates that multiple lists could result from dovetailing. The merger provision directs that the office workers list from one company be merged with the office workers list from the other company — and that other bargaining unit lists be combined in the same, way — in order to maintain the segregation of workers by their bargaining unit or job description. *868The contract does not envision that the event of a merger will allow office employees to do what they could not do otherwise: cross-bump less senior employees from different bargaining units.
The District Court relied on a number of instances in which cross-bumping was allowed — including the driver/yard “special bid” — to determine that cross-bumping was not prohibited. Whatever the evidence on bumping between other bargaining units, it is clear that the office unit was never allowed to bump into non-office jobs. Custom and practice therefore reinforce the clear language of the contract provision in prohibiting office workers from cross-bumping, and the office workers had no right to bid for non-office jobs either before or after the merger.
Although I find the District Court's analysis of the union’s seniority defense to be erroneous, this finding would not affect the union’s ultimate liability. The defense interposed by a bona fide seniority system would allow differences in compensation, or in terms, conditions, or privileges of employment arising from the operation of such a seniority system. The disparity here, however, is in the representation afforded female office workers by the union. No seniority plan forced the union to ignore, mislead, or segregate the female office workers. The defense, therefore, affords no relief from the substantive basis of the plaintiffs’ complaint — it is a meritorious, but incomplete defense.
The seniority defense, however, is important in two other respects. First, the process of labor contract interpretation that is required to prove or disprove the defense raises the possibility of federal preemption under § 301 of the Labor Management Relations Act. This problem is addressed in the preemption section below. The second issue is whether the plaintiffs’ inability to obtain new, non-office jobs with Cassens under their contract mitigates the damages attributable to the union’s discrimination. In other words, if the plaintiffs would have lost their jobs anyway, what reduction is due in the damage award assessed against the union? This question is addressed in the section on damages also presented below.
III. The Preemption Claims
Although I find that the union violated the Elliott-Larsen Act, the difficult issue in this case is whether a meritorious state-law discrimination action is nonetheless preempted by federal labor law.
Whenever federal regulatory legislation is enacted, numerous lawsuits urging preemption of similar state statutes and the establishment of federal common law rules can be expected. Certainly this has been true with respect to federal regulation touching the employer/employee relationship, as demonstrated by the litigative history of ERISA, NLRA, Taft-Hartley, Landrum-Griffin, and Title VII. Preemption issues touch the fundamental doctrines upon which our government is based: the separation of powers and federalism. Decisions regarding preemption are decisions interpreting the Supremacy Clause and the separation and allocation of power among the various tribunals of the state and federal governments of our federal system. The Supreme Court recently summarized the general thrust of preemption analysis:
[T]he NLRA contains no statutory preemption provision. Still, as in any preemption analysis, “ ‘[t]he purpose of Congress is the ultimate touchstone.’ ” Where the pre-emptive effect of federal enactments is not explicit, “courts sustain a local regulation ‘unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States.’ ”
Metropolitan Life Ins. Co. v. Commonwealth of Massachusetts, 471 U.S. 724, 747-48, 105 S.Ct. 2380, 2393, 85 L.Ed.2d 728 (1985) (citations omitted). The Court has consistently held that in enacting the NLRA and the LMRA, Congress did not intend to completely occupy the field; the States retain some authority to enact labor-related legislation. See Allis-Chalmers v. Lueck, 471 U.S. 202, 208-09, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985); *869Amalgamated Ass’n of Street, Electric Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 289, 91 S.Ct. 1909, 1919, 29 L.Ed.2d 473 (1971); Garner v. Teamsters Union, 346 U.S. 485, 488, 74 S.Ct. 161, 164, 98 L.Ed. 228 (1953).
The problem is that Congress has not indicated even in a general way how much state authority has been preempted. See Allis-Chalmers, 471 U.S. at 208, 105 S.Ct. at 1909; Lockridge, 403 U.S. at 289, 91 S.Ct. at 1919. Indeed, with respect to the relationship between a union and its members — the type of relationship we have in the instant case — there is some suggestion that Congress never intended to oust any state regulation. See Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1372-73 (1972); Cox, Recent Developments in Federal Labor Law Preemption, 41 Ohio St.L.J. 277, 284 (1980). The judicially-developed preemption rules create standards to determine the preemption questions left unanswered by Congress.
Four major interconnecting preemption doctrines exist. Two are involved in this case.
A.Interference with a Federally Guaranteed Right — Brown Preemption
The simplest preemption doctrine provides that the States may not regulate conduct that is actually protected by federal law. See Brown v. Hotel and Restaurant Employees Local 54, 468 U.S. 491, 503, 104 S.Ct. 3179, 3186, 82 L.Ed.2d 373 (1984). This principle is applicable to every conflict between state and federal substantive law, and flows directly from the Supremacy Clause. Id. Courts must first determine whether a federal right exists, and then assess the impact of a state regulation upon that federal right.
This simple rule is also simple to apply in the present case. It cannot be argued that the NLRA, or any federal statute, gives a labor union the right to engage in sex discrimination. Indeed, this Circuit has held that sex discrimination by a union constitutes an unfair labor practice prohibited by § 8 of the NLRA. NLRB v. Local 106, Glass Bottle Blowers Ass’n, 520 F.2d 693 (6th Cir.1975); see also Bell & Howell Co., 230 N.L.R.B. 420 (1977). There can be no argument, therefore, that the Michigan statute is preempted by a conflict with a federally guaranteed substantive right.
B. Regulation of Labor/Management Balance of Power — Machinists Preemption.
A second variety of preemption operates when the State seeks to alter the economic power of labor or management. The NLRA established a balance of economic power between these competing factions. In that statute, Congress guaranteed some economic power through § 7 protection, and prohibited some techniques by listing them as unfair labor practices under § 8. However, by its silence as to other economic weapons, Congress indicated an intent to let some aspects of the labor/management relationship “be controlled by the free play of economic forces.” Machinists v. Wisconsin Employment Relations Comm’n., 427 U.S. 132, 140, 96 S.Ct. 2548, 2553, 49 L.Ed.2d 396 (1976). As described in Belknap v. Hale, 463 U.S. 491, 499, 103 S.Ct. 3172, 3177, 77 L.Ed.2d 798 (1983), the preemption doctrine announced in Machinists “proscribes state regulation and state-law causes of action concerning conduct that Congress intended to be unregulated, ... conduct that was to remain a part of the self-help remedies left to the combatants in labor disputes.” Belknap, 463 U.S. at 499, 103 S.Ct. at 3177 (citations omitted).
The rationale of the Machinists case makes clear that this type of preemption applies only to state action which affects the balance of power between labor and management. But the Michigan statute at issue here affects only the union’s relationship to its members. It is also obvious that Congress did not intend to allow a union to use sex discrimination against its members as a “self-help” measure. Machinists preemption is therefore wholly inapplicable to the present case.
C. Interpretation of Labor Contracts— LMRA § 301 Preemption
Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a), autho*870rizes direct suit in the district courts for violations of a collective bargaining agreement. This statute has been interpreted as a mandate for the courts to fashion a uniform body of federal common law to resolve disputes over the interpretation and enforcement of these federal labor contracts. See generally Textile Workers v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957); Field, Sources of Law: The Scope of Federal Common Law, 99 Harv.L.Rev. 883 (1986). This mandate means that in order to achieve the uniformity contemplated by Congress, the federal common law created through § 301 should preempt state regulation of the terms of collective bargaining agreements. See Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962). Section 301 preemption applies whenever a state rule “purports to define the meaning or scope of a term” in a collective bargaining agreement. Allis-Chalmers, at 471 U.S. 210, 105 S.Ct. at 1911. Claims cognizable under state law must be brought as § 301 suits when they are “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” Id. at 220, 105 S.Ct. at 1916; I.B.E.W. v. Hechler, — U.S. -, 107 S.Ct. 2161, 2166 n. 3, 95 L.Ed.2d 791 (1987).
As noted by the Court in Allis-Chalmers, however, the preemptive scope of § 301 is not all-encompassing: Congress did not intend to displace all state law concerning employment or collective agreements. 471 U.S. at 208, 105 S.Ct. at 1909; see also Michigan Mutual Insurance Co. v. United Steelworkers, 774 F.2d 104, 106 (6th Cir.1985) (interpreting Allis-Chalmers). Therefore, “state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract” are not preempted even if they are related to the agreement in some way. Allis-Chalmers, 471 U.S. at 212, 105 S.Ct. at 1912; Michigan Mutual, 774 F.2d at 106. The focus is on whether the effect of the state law can be altered by agreement of the parties. If the parties to a collective bargaining agreement can “contract away” the protection of the state statute, the statute is not sufficiently independent of that agreement and it is preempted. Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912.
The Allis-Chalmers opinion illustrates the application of § 301 preemption. At issue in that case was the effect of § 301 on a Wisconsin tort statute allowing an employee to recover against an employer for the employer’s bad faith in processing an insurance claim. In order to show bad faith on the part of his employer, the plaintiff had to prove the scope of the duty owed to him. Since this duty of care was in turn defined by the collective bargaining agreement, the tort suit could not be resolved without rendering an interpretation of the federal labor contract. Allis-Chalmers, 471 U.S. at 216-19, 105 S.Ct. at 1913-15. This dependence on the terms of the collective bargaining agreement caused preemption of the Wisconsin statute.
In I.B.E.W. v. Hechler, — U.S. -, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987), the Allis-Chalmers analysis was extended beyond the employee-employer relationship to suits between a union and its membership involving implied terms of the collective bargaining agreement. The plaintiff alleged that she was injured on the job because of inadequate training. The collective bargaining agreement contained language that placed some responsibility on the union to supervise the placement and training of its members. 107 S.Ct. at 2168 n. 4. The plaintiff brought a common-law negligence action against the union based upon the union’s breach of a duty to place the plaintiff in a safe workplace. The union removed the case to federal court, and ultimately won a dismissal, on the grounds that § 301 governed the plaintiff’s cause of action. The Eleventh Circuit reversed the dismissal, holding that the tort action was independent of the collective bargaining agreement.
The Supreme Court granted certiorari in Hechler to resolve a split that decision had created with this Circuit’s decision in Michigan Mutual Insurance Co. v. United Steelworkers, 774 F.2d 104 (6th Cir.1985), which held that § 301 preempted a similar *871claim under Michigan law. In reversing the Eleventh Circuit’s decision in Heckler, the Supreme Court focused on the source of the duty to provide adequate training which gave rise to the state tort action. Since the employer, not the union, had the common-law responsibility to provide a safe workplace, the union must have assumed that duty in the collective bargaining agreement or it would not be liable at all under the plaintiff’s theory of the case. Therefore, the union’s duty of care was wholly contractual and flowed from the collective bargaining agreement, not state common or statutory law. Hechler, 107 S.Ct. at 2167-68. Because “questions of contract interpretation ... underlie any finding of tort liability” where the duty at issue flows from the collective bargaining agreement, the Court concluded that Ms. Hechler’s cause of action was preempted by § 301. 107 S.Ct. at 2168 (quoting Allis-Chalmers, 471 U.S. at 218, 105 S.Ct. at 1915).
Unlike the actions at issue in Hechler, Allis-Chalmers, and in Maynard v. Revere Copper Products, Inc., 773 F.2d 733 (6th Cir.1985), cases which are clearly misinterpreted in the majority opinion, the duty at issue in the present case does not flow from the collective bargaining agreement. This distinction is crucial, because the non-contractual nature of the duty also means that it cannot be “waived or altered by agreement of [the] parties.” Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912. Liability under the Elliott-Larsen Act accrues for violating its statutory prohibitions on discrimination, not for the breach of a contractual duty of care established by the collective bargaining agreement. No contract interpretation is required to ascertain the scope of a statutory duty, this being precisely the kind of non-waivable, independent duty approved by the Allis-Chalmers Court. See Allis-Chalmers, 471 U.S. at 212, 105 S.Ct. at 1911.
In Maynard v. Revere Copper, supra, relied upon heavily by the majority opinion, Judge Lively, after quoting the Michigan statute prohibiting a union from failing “to fairly and adequately represent a member in a grievance process because of a member’s handicap,” says that:
Judge Guy [the district judge] concluded that this provision creates no new rights for an employee and imposed no duty on a union not already clearly present under existing federal labor law.
773 F.2d at 735 (emphasis added). Thus in Maynard the state law was held to be precisely the same as federal labor law and gave no rights different from and independent of those arising under the language of the labor management contract as interpreted under federal labor law. This is precisely the kind of problem the Supreme Court dealt with in Allis-Chalmers v. Lueck, supra. Allis-Chalmers is directly on point for the Maynard case but not in our case. Maynard is distinguishable from the instant case for the same reason that Lueck is distinguishable from our case: namely, the source of the sex discrimination rights that the plaintiff asserts are separate from and independent of rights under the collective bargaining agreement and federal labor law. In the next section, which deals with Garmon preemption, I will set out in more detail the reasons why the state’s sex discrimination statutory tort does not overlap or impinge upon any federal labor law.
The present case is unusual, however, because the contract is interpreted to establish a defense, not to establish the duty upon which the action is based. I believe that this is the type of “tangential relationship” which is insufficient to trigger federal preemption. See Allis-Chalmers, 471 U.S. at 211, 105 S.Ct. at 1911. Section 301 was not enacted to allow a defendant to escape a state anti-discrimination statute by raising a labor contract in defense. Federal law must be used to establish the defense because the labor contract is itself a creature of federal law. But the fact that the labor agreement must be considered by the trial court in assessing liability for sex discrimination will not result in conflicting interpretations of these federal contracts, and therefore does not implicate § 301 preemption.
*872D. Interference With NLRB Jurisdiction — Garmon Preemption
It is unclear to me whether the majority is applying Garmon preemption to defeat and preempt state sex discrimination law or not.
When Congress enacted the National Labor Relations Act, it enacted comprehensive procedural rules and created a new tribunal — the National Labor Relations Board — to administer this specially designed regulatory structure. The result was a “complex and interrelated scheme of federal law, remedy, and administration” designed to achieve uniformity in our national labor policy. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 242-43, 79 S.Ct. 773, 778-79, 3 L.Ed.2d 775 (1959). Entrusting 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,” was crucial to achieving the desired uniformity. Id. at 242, 79 S.Ct. at 778. Otherwise, differing judicial attitudes and procedures among multiple tribunals would inevitably produce conflicting interpretations of the NLRA. See Garner v. Teamsters Union, 346 U.S. 485, 490-91, 74 S.Ct. 161, 165-66, 98 L.Ed. 228 (1953).
The Supreme Court has fashioned a special preemption doctrine to protect the centralization of administration envisioned by Congress. In Garmon, the Court held that “[w]hen an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” 359 U.S. at 245, 79 S.Ct. at 780. The breadth of the language used in this standard — “arguably subject to § 7 or § 8” — is meant to protect jealously the NLRB’s authority to interpret and enforce the core sections of the statute. If primary administrative authority is to mean anything, it must include giving the NLRB the initial opportunity to determine whether conduct is protected activity under § 7, or prohibited as an unfair labor practice under § 8.
The Garmon opinion itself, however, admits exceptions to the NLRB’s primary jurisdiction. Where the conduct at issue is of only “peripheral concern” to federal labor policy, centralized decision-making is not as important, Garmon, 359 U.S. at 243, 79 S.Ct. at 778; and the gains to be reaped from a diffusion of power in our federal system support limited state regulation of these “peripheral” matters. Id. In addition, respect for the regulatory role of the States also requires that their authority be maintained over activity “deeply rooted in local feeling and responsibility.” Id. at 244, 79 S.Ct. at 779. This second exception is necessary because Congress has provided no compelling indication that it intended to deprive the States of their traditional power over these matters. Id.
The Garmon rule remains the general test for preemption, but a number of recent cases have addressed limitations on the rule that go beyond the two stated in the opinion. These cases reflect the Supreme Court’s reluctance to apply Garmon in a “literal, mechanistic fashion.” Sears, Roebuck & Co. v. Council of Carpenters, 436 U.S. 180, 188, 98 S.Ct. 1745, 1753, 56 L.Ed.2d 209 (1978). Of particular relevance here is the evolving distinction between conduct that is arguably “protected” and that which is arguably “prohibited” under the Act. Since there can be no argument that sex discrimination by a labor union is even arguably protected by the NLRA, we need to focus on the cases dealing with the “arguably prohibited” branch of Garmon.
Where a state cause of action prohibits conduct that is arguably prohibited by the NLRA, there is no danger that state regulation will interfere with conduct that Congress intended to protect. See Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 298, 302, 97 S.Ct. 1056, 1062, 1064, 51 L.Ed.2d 338 (1977). In such a case, the preemption question turns on a balancing of the respective federal and state interests in regulating the conduct. Id. at 300, 97 S.Ct. at 1063; Belknap v. Hale, 463 U.S. 491, 498-99, 103 S.Ct. 8172, 3177, 77 L.Ed.2d 798 (1983); Local 926, *873Int’l Union of Operating Eng'rs v. Jones, 460 U.S. 669, 676, 103 S.Ct. 1453, 1458, 75 L.Ed.2d 368 (1983). That the state cause of action presents “some risk” to an area of “primary federal concern” is insufficient to preempt it. Id. 430 U.S. at 303, 97 S.Ct. at 1065; Sears, Roebuck & Co. v. Council of Carpenters, 436 U.S. 180, 196 n. 25, 98 S.Ct. 1745, 1757 n. 25, 56 L.Ed.2d 209 (1978). Thus a statute which would be preempted under a rigid application of the Garmon rule may nonetheless be upheld if the State’s interest is sufficiently compelling. Farmer, 430 U.S. at 302, 97 S.Ct. at 1064.
Another factor to be considered in the preemption equation is the extent to which litigation in the state forum will be similar to the federal proceeding in content and remedy. This concept is best stated by the Court in Sears, Roebuck & Co. v. Council of Carpenters. Reasoning from the “primary jurisdiction” rationale of Garmon and considering the procedural difficulties of obtaining Board review in some contexts, the Sears Court held that a state cause of action is preempted only where the controversy presented to the state court is identical to that which could have been presented to the Board. Sears, 436 U.S. at 197, 202, 98 S.Ct. at 1757, 1760. The focus is on the character of the litigation in the two forums: i.e. whether the predicate issues and available remedies are the same. See Cox, Recent Developments in Federal Labor Law Preemption, 41 Ohio St.L.J. 277, 282-84 (1980). Where this identity is lacking, the state court’s adjudication of the state cause of action does not threaten the federal regulatory scheme because the state tribunal does not purport to act as a surrogate labor board. Sears, 436 U.S. at 197 n. 26, 98 S.Ct. at 1757 n. 26 (quoting Farmer, 430 U.S. at 304-05, 97 S.Ct. at 1065-66).
The foregoing cases establish a framework for deciding the § 8 preemption question posed by the present litigation. As a starting point, there is no question that sex discrimination by a union against its members constitutes a breach of the union’s duty of fair representation and is an unfair labor practice. See N.L.R.B. v. Local 106, Glass Bottle Blowers Ass’n, 520 F.2d 693 (6th Cir.1975); Bell & Howell Co., 230 N.L.R.B. 420 (1977). This triggers the presumption of preemption enunciated in Gar-mon, and the Michigan statute can survive preemption only if the “local interest” exception to Garmon is applicable.
I do not pause long on the question of whether sex discrimination is a matter of “local interest.” Given the prevalence and perniciousness of gender-based discrimination in the workplace, the State of Michigan has an obvious and compelling interest in enacting prohibitory legislation. The State’s interest here is at least as weighty as the interests that have justified a local interest exception in previous cases. See Farmer, 430 U.S. at 302, 97 S.Ct. at 1064 (infliction of emotional distress); Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) (libel); Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958) (physical violence). This interest is therefore sufficient to prevent preemption here unless the Michigan statute creates undue interference with the federal regulatory scheme.
In an analogous situation, the Supreme Court has held that private suits to enforce the union’s duty of fair representation do not create undue interference with the federal regulatory scheme. In Vaca v. Sipes, 386 U.S. 171, 182-84, 87 S.Ct. 903, 912-14, 17 L.Ed.2d 842 (1967), the Court held that the history and special purpose of the duty of fair representation doctrine undercut the rationale for primary Board jurisdiction:
A primary justification for the preemption doctrine — the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose — is not applicable to cases involving alleged breaches of the union’s duty of fair representation. The doctrine was judicially developed in Steele [v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944)] and its progeny, and suits alleging breach of the duty remained judicial*874ly cognizable long after the NLRB was given unfair labor practice jurisdiction over union activities by the L.M.R.A. Moreover, when the Board declared in Miranda Fuel [140 N.L.R.B. 181 (1962) enforcement denied, 326 F.2d 172 (C.A.2d Cir.1963)] that a union’s breach of its duty of fair representation would henceforth be treated as an unfair labor practice, the Board adopted and applied the doctrine as it had been developed by the federal courts. Finally, as the dissenting Board members in Miranda Fuel have pointed out, fair representation duty suits often require review of the substantive positions taken and policies pursued by a union in its negotiation of a collective bargaining agreement and in its handling of the grievance machinery; as these matters are not normally within the Board’s unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision.
In addition to the above considerations, the unique interests served by the duty of fair representation doctrine have a profound effect, in our opinion, on the applicability of the pre-emption rule to this class of cases.... [T]he duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. Were we to hold, as petitioners and the Government urge, that the courts are foreclosed by the NLRB’s Miranda Fuel decision from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union cor 'net could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. The existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union’s breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine.
Vaca, 386 U.S. at 180-83, 87 S.Ct. at 912-13 (citations and footnotes omitted).
Furthermore, Congress has itself recognized that the primary NLRB jurisdiction must yield where a union discriminates against its members on the basis of sex. In order to vindicate the public interest in eliminating union discrimination without forcing recourse to inadequate NLRB procedures, Congress included a special provision in Title VII to cover discrimination by a union, and allowed this prohibition to be enforced by a private action. See 42 U.S.C. §§ 2000e-2-5 (1982). Congress obviously found the potential interference caused by private suits to be acceptable in light of the importance of eradicating discrimination. Since the Michigan Elliot-Larsen Act is patterned after Title VII, it will not pose a significantly greater threat to national labor policy than that already endorsed by Congress.
The apparent contradiction between Gar-mon preemption and the approach taken in the Vaca case and Title VII can be resolved by reference to the original purpose of the preemption rule: ensuring that disputes within the Board’s expertise were committed first to it. But, as Professor Cox has noted, “Congress has never developed a comprehensive and impliedly exclusive plan of federal regulation for union-member relations.” Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1372 (1972). As a result, the NLRB has no special expertise over these disputes. Furthermore, the courts, not the NLRB, generally adjudicate discrimination actions. Since the NLRB has little expertise over either the parties or the subject-matter of the dispute, the primary jurisdiction rationale of Gar-mon does not apply to a discrimination suit between a union member and a union.
Moreover, whatever interference with NLRB jurisdiction is posed by the present claim, it is diminished by the marked dissimilarity between an Elliott-Larsen proceeding and an unfair labor practice charge. See Sears, 436 U.S. at 197, 98 S.Ct. at 1757. An Elliott-Larsen plaintiff controls her own lawsuit, while the unfair labor practice charge ultimately pits the *875NLRB, not the charging individual, against the party charged with the violation. While the Vaca Court described the drawbacks of NLRB representation from the plaintiffs perspective, 386 U.S. at 182-83, 87 S.Ct. at 912-13, an unfair labor practice proceeding does allow the aggrieved party a chance at redress without hiring a private attorney. Furthermore, distinct remedies —punitive damages under the state statute or decertification of the union under the NLRA — reinforce the discrete purposes of the two statutes. Stated in terms used by the Sears Court, an Elliott-Larsen action does not present a controversy “identical to ... that which could have been, but was not, presented to the Labor Board.” 436 U.S. at 197, 98 S.Ct. at 1757.
I conclude, therefore, that the state statute is not preempted by the National Labor Relations Act. When measured against the weighty interest the State of Michigan has in eliminating discrimination, the potential interference with national labor policy created by the Elliott-Larsen Act is insufficient to force preemption of the statute. Both the Supreme Court in Vaca v. Sipes, and Congress in Title VII, have indicated the limits of the NLRA as an anti-discrimination statute. The State of Michigan has enacted a law that recognizes these limitations and prescribes an alternative remedy consistent with that provided by Congress in Title VII. Under these circumstances, there is no reason to believe that Congress enacted the NLRA to prevent such a salutary development in the laws of the States.
IV. Damages
When the District Court reheard this case after our remand order, it did not recompute the damages allocable to the union but merely reinstated the judgment entered in the earlier proceeding. Although the plaintiffs had settled with the codefendant employer in the interceding period, the District Court saw no need to recompute the damages when an appeal was pending on liability. Thus the earlier judgment was reaffirmed despite the plaintiffs’ concession that the union was entitled to a setoff to reflect the Cassens settlement. See Record on Motion to Affirm or Reinstate Judgment at 21.
The record on the motion to reinstate the judgment reflects genuine confusion as to the application of a setoff in favor of the union, the availability of prejudgment interest, and the appropriate interest rate for interest awards. As a result, I agree that we must vacate the present damage award and remand for detailed findings of fact and conclusions of law on the intricate damages issues presented by this case. On remand, the District Court should be instructed to recompute the damages based on the principles established by the Elliott-Larsen Act for that purpose.3
I agree that when recomputing the damages allocable to the union’s misconduct, the District Judge should not allow damages for lost wages which resulted from the plaintiffs’ inability to use their office seniority to gain non-office jobs. The limitation on cross-bumping for office employees was established by the contract, not union misconduct. I agree that if the plaintiffs would have lost their jobs even if the union had been diligent in its representation of them, the plaintiffs’ recovery should be limited to compensation for the union’s neglect. In other words, the union cannot be held liable for consequences it could not have prevented given the limitations imposed by the contract. I can see no reason, however, for refusing to allow the plaintiff any damages they suffered as a result of the union’s use of segregated seniority lists to prevent the women from competing with men for existing or new positions for which they should have an equal opportunity to *876apply. Neither can I see any reason to disallow damages for the union’s repeated refusal to negotiate for plaintiffs’ jobs or for making misleading statements about the effects of the merger. Although the seniority provisions of the contract did not allow the office workers the right to cross-bump, the women were entitled to equal employment opportunity and equal union representation in all other respects.
. The pendent jurisdiction issue is easily disposed of in this case. Pendent jurisdiction in the federal courts is governed by United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), and its progeny. Since pendent jurisdiction is a doctrine of discretion and not of substantive right, the plaintiff must show that the federal court has the power to hear the state law claim and that it is prudent to do so. Id. at 725-26, 86 S.Ct. at 1138-39. The justification for pendent jurisdiction “lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them." Id. at 726, 86 S.Ct. at 1139 (citation omitted). Appellate review of a district court’s decision to exercise pendent jurisdiction is governed by an abuse of discretion standard. Id. at 728, 86 S.Ct. at 1140.
In deciding whether pendent jurisdiction was proper after the remand order from this Court, the District Judge noted that the Gibbs analysis was colored by the protracted nature of this litigation, and by the fact that a full trial on the merits had already been held. Jones, 617 F.Supp. at 873. We agree that the history of this litigation supports an exercise of pendent jurisdiction in order to promote "judicial economy, fairness and convenience to litigants” as suggested by Gibbs. Accordingly, the District Court did not abuse its discretion by maintaining jurisdiction over the state law claims on remand after the federal claims were dismissed on appeal.
. Section 204 of the EIliott-Larsen Act, Mich. Comp.Laws Ann. § 37.2204, provides:
37.2204. Labor organizations; prohibited acts
Sec. 204. A labor organization shall not:
(a) Exclude or expel from membership, or otherwise discriminate against, a member or applicant for membership because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(b) Limit, segregate, or classify membership or applicants for membership, or classify or fail or refuse to refer for employment an individual in a way which would deprive or tend to deprive that individual of an employment opportunity, or which would limit an employment opportunity, or which would adversely affect wages, hours, or employment conditions, or otherwise adversely affect the status of an employee or an applicant for employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(c) Cause or attempt to cause an employer to violate this article.
(d) Fail to fairly and adequately represent a member in a grievance process because of religion, race, color, national origin, age, sex, height, weight, or marital status.
. Since the Elliott-Larsen Act was modeled on Title VII, aspects of the federal action have been incorporated into the state statute. However, Michigan has interpreted the damages provision of the Elliott-Larsen Act to support an award of exemplary damages, a result not possible under Title VII. See Ledsinger v. Burmeister, 114 Mich.App. 12, 318 N.W.2d 558, 563 (1982). Thus, cases which address problems of contribution and indemnity under Title VII may not be helpful because of Michigan’s apparent divergence from federal law on damages questions. See, e.g., Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981); Anderson v. Local Union 3,1.B.E.W., 751 F.2d 546 (2d Cir.1984).