dissenting.
Because Congress has 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/Sulli-van’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, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), and its 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, Dou-lamis’ 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, 109 S.Ct. 2506, 2517-18, 105 L.Ed.2d 298 (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, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
I.
Garmon says that “[wjhen 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.” Gar-mon, 359 U.S. at 245, 79 S.Ct. at 780.6 Gar-mon 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, 79 S.Ct. at 779.
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, 79 S.Ct. at 779. 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, 375 N.E.2d 1192 (1978) (employment discrimination of peripheral concern to the NLRA); Walker Mfg. Co. v. Industrial Commission, 27 *1372Wis.2d 669, 681, 135 N.W.2d 307 (1965) (age discrimination of peripheral concern to Labor Management Relations Act). 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, 103 S.Ct. 3172, 77 L.Ed.2d 798 (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, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977) (infliction of emotional distress); Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (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
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, 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 *1373while 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, 615 N.E.2d 192 (1993); see also Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 646 N.E.2d 111 (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 by Doulam-is’ 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, 98 S.Ct. 1745, 56 L.Ed.2d 209 (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, 98 S.Ct. at 1752-53, 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, 98 S.Ct. at 1757-58.8 Doulamis’ MCAD claim is not 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, 646 N.E.2d 111. 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 Bur*1374gess were doing the same thing (yet only one was harassed), the 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 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, 67 F.3d 978, 979 (1st Cir.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, 106 S.Ct. 2380, 2393, 85 L.Ed.2d 728 (1985) (stating, in discussing NLRA preemption, including Gar-mon 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 *1375wishes 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, 94 S.Ct. 1011, 1019-20, 39 L.Ed.2d 147 (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, — U.S. -, 113 S.Ct. 2929, 124 L.Ed.2d 679 (1993); Morgan v. Massachusetts General Hosp., 901 F.2d 186, 194 (1st Cir.1990) (“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, 94 S.Ct. at 1019-20. 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 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 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 *1376structure 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, 99 S.Ct. 2066, 60 L.Ed.2d 609 (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, 94 S.Ct. at 1019 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 coex-tensively with Title VII, then perhaps preemption would be appropriate. But that is not the case. Nothing in Title VII says that state anti-discrimination 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, 105 S.Ct. 2380, 2393, 85 L.Ed.2d 728 (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 Air Lines, Inc., 463 U.S. 85, 102, 103 S.Ct. 2890, 2902-03, 77 L.Ed.2d 490 (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.
The Supreme Court’s decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (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:
[Ljegislative 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 Enter*1377prises, [390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (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 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, 94 S.Ct. at 1019-20 (emphasis supplied; footnotes omitted); 16 see also Broten v. Hotel and Restaurant Employees and Bartenders Intern. Union, Local 54, 468 U.S. 491, 104 S.Ct. 3179, 82 L.Ed.2d 373 (1984).17
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, 79 S.Ct. at 779. 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 dis-positive question, apart from whether Gar-mon preemption is appropriate, is whether this federal court should bar the state fair employment agency from hearing this claim *1378and 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, 91 S.Ct. 746, 27 L.Ed.2d 669 (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, 106 S.Ct. 2718, 2722-28, 91 L.Ed.2d 512 (1985). Although Chaulk claims that Younger abstention is a principle of “discretionary deference,” the Supreme Court has stated that where a ease 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, 96 S.Ct. 1236, 1246 n. 22, 47 L.Ed.2d 483 (1976) (“Where a case is properly within [the Younger ] category of eases, there is no discretion to grant injunctive relief.”); see also Sun Refining & Marketing Co. v. Brennan, 921 F.2d 635, 639 (6th Cir.1990) (“[UJnlike 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 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 Betten-court 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, 106 S.Ct. at 2723-24 (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, 106 S.Ct. at 2723 (“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, 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, 109 S.Ct. 2506, 2516-17, 105 L.Ed.2d 298 (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 plaintiffs constitutional claim. Middlesex County Ethics Committee v. Garden State Bar Ass’n, *1379457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (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, 106 S.Ct. at 2723-24 (“[I]t is sufficient ... that constitutional claims may be raised in state-court judicial review of the administrative proceeding.”) (citation omitted).
If federal law barred the Massachusetts state courts from deciding the Garmon preemption question, then the “adequate opportunity” pi’ong 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 ease 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, 108 S.Ct. 1684, 1691-92, 100 L.Ed.2d 127 (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 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, 106 S.Ct. 1904, 1914, 90 L.Ed.2d 389 (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 eases. 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.”
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 *1380constitutional challenge to state action will not alone compel the exercise of federal jurisdiction____ [P]reemption-based challenges merit a similar focus....
Id. 491 U.S. at 865, 109 S.Ct. at 2516. 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, 109 S.Ct. at 2516-17.19
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, 91 S.Ct. at 754-55. 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, 109 S.Ct. at 2717-18, 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, 109 S.Ct. at 2717-18. 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 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, 109 S.Ct. at 2518.21
Finally, the fact that the union filed a complaint with the NLRB before Doulamis *1381filed her complaint before the MCAD does not resolve the matter.22 To begin with, Chaulk never raised 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, 92 S.Ct. 373, 376-77, 30 L.Ed.2d 328 (1971).23 The fact that the NLRB did not so move speaks volumes.
I respectfully dissent.
. 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.
. Doulamis’ claim cannot be preempted simply because the case arises from a labor dispute. The Supreme Court has squarely held that Gar-mon preemption does not turn on whether a claim arises in the context of a labor dispute. Linn, 383 U.S. at 63, 86 S.Ct. at 663 ("Nor should the fact that defamation arises during a labor dispute give the Board exclusive jurisdiction to remedy its consequences.”).
. 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, 98 S.Ct. at 1762-63. 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, 98 S.Ct. at 1759. 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, "[pjlainly 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 1366; see also Majority Op. at 1366 n. 4. While this consideration is important to cases involving “arguably protected” conduct, it is not to "arguably prohibited” conduct.
. 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 "l-CA-31196, 31945(2), 32267, 32378, 32504, 32534, 32645, 32661.” Only one of those docket numbers, l-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 l-CA-31157, filed November 29, 1993, and l-CA-31181-2, filed December 6, 1993.
. 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, 107 S.Ct. 2425, 2433, 96 L.Ed.2d 318 (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).
. 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.
. 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 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.”).
.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).
. The right to bargain collectively is, of course, an NLRA conferred right. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 n. 8, 105 S.Ct. 1904, 1912 n. 8, 85 L.Ed.2d 206 (1985).
. In Alexander, as here, there had been no waiver of statutory rights. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35, 111 S.Ct. 1647, 1656-57, 114 L.Ed.2d 26 (1991).
. The Court has applied a similar analysis in analogous situations. See Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 412, 108 S.Ct. 1877, 1884-85, 100 L.Ed.2d 410 (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, 83 S.Ct. 1022, 1027, 10 L.Ed.2d 84 (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).
. 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, 104 S.Ct. at 3189.
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 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.
. 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, 106 S.Ct. at 2723 & n. 2.
.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, 102 S.Ct. at 2520-21; Sun Refining, 921 F.2d at 641.
. 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).
. 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 *1381pleading. 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.
. 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.
. 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, 66 S.Ct. 761, 90 L.Ed. 873 (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, 66 S.Ct. at 767. No comparable threat exists here. In fact, in Watson the Court explicitly said 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, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See id. at 599, 61 S.Ct. at 776.