Local Union No. 12004, United Steelworkers v. Massachusetts

United States Court of Appeals
For the First Circuit

Nos. 03-2352
03-2551

LOCAL UNION NO. 12004, UNITED STEELWORKERS OF AMERICA; STEPHEN T.
BRADLEY; GARY S. BUMA; PAUL P. EDMONDS; CHARLES H. GRANT, JR.;
RAYMOND LAHAIR, JR.; CHARLES McNEIL; RONALD F. MEZZANO; THOMAS
NUGENT; and THOMAS ST. PIERRE,

Plaintiffs, Appellants / Cross-Appellees,

v.

COMMONWEALTH OF MASSACHUSETTS, MASSACHUSETTS COMMISSION AGAINST
DISCRIMINATION; DORCA I. GOMEZ, Commissioner for the
Massachusetts Commission Against Discrimination; WALTER J.
SULLIVAN, JR., Commissioner for the Massachusetts Commission
Against Discrimination; and CYNTHIA A. TUCKER, Commissioner for
the Massachusetts Commission Against Discrimination,

Defendants, Appellees,

PETER D. McGRATH,

Defendant, Appellee / Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Circuit Judge,
Porfilio,* Senior Circuit Judge,
and Lynch, Circuit Judge.

*
Of the Court of Appeals for the Tenth Circuit, sitting by
designation.
 Rudolph Milasich, with whom Harold L. Lichten, Terence E.
Coles, and Pyle, Rome, Lichten & Ehrenberg, P.C. were on brief, for
appellants/cross-appellees.

Robert L. Quinan, Jr., Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for the
Massachusetts appellees.

Donald C. Keavany, Jr., with whom Christopher, Hays, Wojcik &
Mavricos was on brief, for appellee/cross-appellant McGrath.

Michele Granda, Charles P. Wagner, and Charles P. Wagner &
Assocs. were on brief for amici curiae Gay & Lesbian Advocates &
Defenders (GLAD) and the Massachusetts Lesbian & Gay Bar
Association.

July 30, 2004
 LYNCH, Circuit Judge. A labor union and several of its

individual members (the Union) seek declaratory and injunctive

relief against the Massachusetts Commission Against Discrimination

(MCAD) to prevent the MCAD from adjudicating a charge of

discrimination by a supervisor against the Union that arose out of

a labor dispute. The sole basis for the Union's federal complaint

is its contention that the MCAD proceeding is preempted by federal

labor law under San Diego Building Trades Council v. Garmon, 359

U.S. 236 (1959), and related doctrines. The district court

dismissed the complaint for lack of subject-matter jurisdiction.

We reverse and remand for further proceedings consistent with this

opinion.

I.

For purposes of this appeal, we accept as true the well-

pleaded factual allegations in the Union's complaint and draw all

reasonable inferences from those allegations in its favor. Soto-

Negron v. Taber Partners I, 339 F.3d 35, 38 (1st Cir. 2003). Where

the federal complaint is silent, additional details are drawn from

the allegations in the verified complaint filed with the MCAD.

The incidents underlying this case occurred in April

1996, when Commonwealth Gas Company (ComGas) was embroiled in a

bitter labor dispute. Local Union No. 12004 of the United

Steelworkers of America, AFL-CIO (Local 12004), was negotiating a

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successor collective bargaining agreement on behalf of its members,

who are a "bargaining unit" of production and clerical employees.

On April 1, 1996, when the previous collective bargaining

contract expired, ComGas ordered a lockout of all employees who

were members of Local 12004. Local 12004 responded with a

concerted picketing campaign against the company. In addition to

picketing at ComGas facilities, Local 12004 sent some of its

members to set up picket lines at off-site areas where crews

composed of ComGas supervisors and contractors were performing work

ordinarily done by Local 12004 members. The purpose of these

worksite picket lines was "to convince the[] supervisors and

contractors not to perform work and services for ComGas that were

considered to be bargaining unit work."

One of the ComGas supervisors assigned to perform this

bargaining-unit work was Peter McGrath. McGrath, who is gay, was

ordinarily employed as a manager for commercial and industrial

sales at the company's Southboro, Massachusetts headquarters.

Shortly after the lockout began, ComGas instructed McGrath to

assist a distribution crew in Worcester, Massachusetts. The

distribution crew was charged with investigating and repairing

underground gas leaks in the Worcester area, work normally done by

Local 12004 members.

When McGrath's crew started this work, Local 12004

members followed the crew and picketed its worksites. The picket

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lines were rowdy and vulgar. The Union's complaint candidly

describes the pickets' behavior: "The locked out employees would

comment on how fat the scabs were, their lack of intelligence, what

kinds of families they must have come from, their lack of sexual

prowess, and their sexual orientation." All of this, according to

the Union, was calculated to persuade the distribution crew,

including McGrath, not to perform bargaining-unit work during the

lockout.

On May 7, 1996, McGrath filed an action in Massachusetts

Superior Court against the Local 12004 members who had shouted

sexually derogatory comments at him, asserting both Massachusetts

common law and statutory claims. According to the Union, ComGas

funded McGrath's state lawsuit and even provided an attorney to

represent him. Approximately one month later, McGrath filed a

verified complaint against the same Local 12004 members in the MCAD

alleging discrimination on the basis of sexual orientation.

Unusually, the literal terms of the Massachusetts employment

discrimination statute appear to extend to discrimination by lower-

ranked union employees against a supervisor in this context.1

1
The statute makes it unlawful "[f]or a labor organization,
because of . . . sexual orientation . . . to discriminate in any
way against . . . any individual employed by an employer." Mass.
Gen. Laws ch. 151B, § 4(2). It is not immediately clear whether
this prohibition also regulates the conduct of individual members
of a labor organization. But the statute also provides that it is
unlawful "[f]or any person to coerce, intimidate, threaten, or
interfere with another person in the exercise or enjoyment of any
right granted or protected by this chapter." Id. § 4(4A). Taken

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 The lockout ended on September 8, 1996, when ComGas and

Local 12004 agreed to a new collective bargaining agreement. The

pickets went back to work and McGrath was subjected to no further

abuse or harassment. Nothing had yet happened in McGrath's state

court litigation, and McGrath voluntarily dismissed that complaint.

The voluntary dismissal, it seems, was part of a general settlement

between ComGas and Local 12004 in which each side agreed to

encourage its members to dismiss pending judicial complaints based

on the dispute.

McGrath did not, however, withdraw his MCAD complaint.

On the contrary, McGrath filed a new verified complaint with the

MCAD in November 1996, this time including Local 12004 itself and

one more individual member (Thomas Nugent) as additional

respondents. The complaint alleged that Local 12004 members had

subjected McGrath to a "continuing pattern of speech and behavior

. . . which is intimidating, threatening and harassing, and which

constitutes discrimination based on sex and sexual orientation."

It further alleged that Local 12004's leadership was aware of the

pickets' "unlawful" behavior and failed to take any action to

prevent it. According to the Union, ComGas funded McGrath's MCAD

in conjunction with the right not to be discriminated against "in
any way" by a union, this provision appears to prohibit individual
acts of discrimination when they are performed by lower-level
subordinates who are acting as agents of the union. This analysis
is consistent with the MCAD's decision, which relied on Beaupre v.
Smith, 50 Mass. App. Ct. 480, 491-92 (2000).

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complaint despite the end of the lockout and continued to fund the

litigation through 2000.

McGrath's two MCAD complaints describe in detail the

verbal abuses to which he was subjected. Most were simply crude

remarks on his sexual orientation.2 However, several comments

involved what McGrath says are false and potentially damaging

assertions -- for example, "Hey, watch out, he's got AIDS, he has

probably given half you guys AIDS by now," and "Look how small

these guys are. You look like little boys. You and Pete [McGrath]

should get together because he likes little boys." In addition,

several of the comments involved physical threats. Some of these

were only vaguely threatening, and may or may not have been

intended as threats of violence (e.g., "Do you want some K-Y up

that hole, sweetie?" or "I might like a piece of that ass myself").

Two incidents described in the MCAD complaints, however,

involved apparently dangerous and threatening conduct. On April 7,

1996, several Local 12004 members allegedly chased McGrath in their

vehicles for several miles. When they finally caught him, they

banged on the side of McGrath's vehicle, pushed the side-view

mirror into the window, and shouted threats that included "We will

put you in a box" and "I will pull your mustache off, you faggot."

2
Examples include "faggot"; "Nice earring, faggot, do you
have a lot more at home?"; "Look in the hole, two scabs and a fag";
"Nice ass, are you going to wear a speedo when you go to
Provincetown this summer?"; and similar fare.

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On another occasion, an unidentified Local 12004 member poured a

liquid onto McGrath's back, causing a burning sensation.

The Union and its members say they filed a motion to

dismiss the MCAD complaint on preemption grounds shortly after the

complaints were filed. In any event, over two years later, on July

9, 1999, an investigating commissioner of the MCAD issued a

probable cause finding3 against the Union and ordered that the case

proceed to a public hearing. The commissioner certified three

questions to the full Commission for determination, including: "Is

the complaint pre-empted by the National Labor Relations Act as

interpreted in San Diego Building Trades Council v. Garmon, 359

U.S. 236 (1959)?"4

The full Commission answered the certified questions on

December 11, 2001, holding that MCAD's jurisdiction to adjudicate

McGrath's complaint was not preempted by Garmon. The Commission

acknowledged that, under Garmon, states have no authority to

regulate conduct that is arguably protected under § 7 or arguably

3
Under MCAD procedure, the investigating commissioner must
issue a probable cause finding "[i]f, after appropriate
investigation, the Investigating Commissioner determines that there
is sufficient evidence to support a finding of Probable Cause to
credit the allegations of the complaint." Mass. Regs. Code tit.
804, § 1.15(7)(b). For these purposes, probable cause requires
"sufficient evidence upon which a fact-finder could form a
reasonable belief that it is more probable than not that the
respondent committed an unlawful practice." Id. § 1.15(7)(a).
4
The remaining two questions involved the Union's liability
for harassing acts by its members and the personal liability of
individual employees for harassment based on sexual orientation.

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prohibited under § 8 of the National Labor Relations Act (NLRA).

Cf. Garmon, 359 U.S. at 245-47. Nevertheless, the Commission held

that McGrath's allegations of harassment and threats of violence

implicated the Commonwealth's "compelling state interest in the

maintenance of domestic peace," an interest that the Garmon Court

recognized as a legitimate basis for state regulation. Cf. id. at

247. Further, the Commission held that it was not barred from

considering the Union's less threatening verbal abuses of McGrath

because, the Commission concluded, the NLRA does not protect

racial, ethnic, or homophobic slurs. It also found that McGrath

could not have complained about the conduct to the NLRB.5 Lastly,

the Commission concluded that McGrath's complaint stated a claim

against Local 12004 itself because it provided a sufficient basis

to conclude that the organization knew of its members' harassment

of McGrath and, in effect, ratified their conduct. At present, the

MCAD order has no preclusive effect.6

5
As we explain in Part III, the MCAD's conclusions that the
NLRA does not protect racial, ethnic or homophobic slurs and that
McGrath could not have complained about some of the Union conduct
are both flatly wrong.
6
Because the MCAD proceeding has not reached final judgment,
the Union is not presently blocked by the Massachusetts doctrine of
collateral estoppel from relitigating the issue of Garmon
preemption in federal court. See Martin v. Ring, 514 N.E.2d 663,
664 (Mass. 1987) (collateral estoppel requires, inter alia, a final
judgment on the merits). Massachusetts courts do accord final
decisions of the MCAD preclusive effect, however, so the ultimate
outcome of the MCAD proceeding may well bind the Union in any
subsequent federal court action. See Brunson v. Wall, 541 N.E.2d
338, 340-41 (Mass. 1989).

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 More than a year later, on February 27, 2003, having

litigated the preemption question in the MCAD and lost, the Union

filed this action in federal district court. The complaint named

as defendants the MCAD, three MCAD commissioners, and Peter

McGrath. The Union sought a declaratory judgment that the MCAD

proceeding was preempted both under Garmon and under Lodge 76,

International Association of Machinists v. Wisconsin Employment

Relations Commission, 427 U.S. 132 (1976) (hereinafter Machinists),

and an injunction prohibiting the Commission from taking further

action on McGrath's complaint. It also asserted a right to

injunctive relief for preemption under 42 U.S.C. § 1983. In

response, McGrath moved to dismiss the case on Younger abstention

grounds. Younger v. Harris, 401 U.S. 37 (1971). The Commonwealth

of Massachusetts, on behalf of the MCAD and its commissioners,

likewise moved to dismiss for lack of subject-matter jurisdiction

or, in the alternative, for abstention under Younger.

On August 5, 2003, the district court held that it lacked

subject-matter jurisdiction over the Union's complaint. It

reasoned that the Union's preemption claims are inherently

defensive and thus that, under the "well-pleaded complaint" rule,

the case did not arise under the laws of the United States.

Nevertheless, the court went on in dicta to offer the Union

"reassurance" on the merits of its Garmon preemption argument,

opining at length on the relationship between federal labor law and

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state tort law and expressing "confiden[ce]" that the MCAD would

take account of that relationship in adjudicating McGrath's

complaint. The court did not address the question of Younger

abstention.

The Union filed this appeal on September 22, 2003,

approximately two weeks after the thirty-day period for filing an

appeal had expired. See Fed. R. App. P. 4(a). On the Union's

motion, the district court granted an extension of time to file.

McGrath (but not the Commonwealth) cross-appeals the district

court's decision to grant the extension.

II.

A. Timeliness of Appeal

Before addressing the district court's subject-matter

jurisdiction, we must tend to our own. The timely filing of a

notice of appeal is "mandatory and jurisdictional." Browder v.

Dir., Dep't of Corr., 434 U.S. 257, 264 (1978). Nevertheless, the

district court may extend the deadline in limited circumstances

upon a showing of "excusable neglect or good cause." Fed. R. App.

P. 4(a)(5)(A)(ii); Bennett v. City of Holyoke, 362 F.3d 1, 4 (1st

Cir. 2004).

In this case, the thirty-day period expired on September

8, 2003. On September 22, fourteen days later, the Union filed its

notice of appeal and attached a motion for an extension of time.

McGrath opposed the motion; the other defendants did not. The

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district court granted it without comment. McGrath now cross-

appeals the court's order allowing the plaintiffs to file late. We

review a district court's decision to grant an extension of time

under Rule 4(a)(5) for abuse of discretion. Bennett, 362 F.3d at

4.

The grant of the extension was within the discretionary

power of the district court and was not abusive. According to the

Union's Rule 4(a)(5) motion and the attached affidavit, the

attorney who was responsible for preparing the notice of appeal was

preoccupied by the need to care for his infant son, who was

severely ill. Though counsel drafted the notice of appeal before

the thirty-day period expired, he failed to file it. The attorney

represented that he did not become aware of this error until

September 18, 2003, ten days after the original deadline. McGrath

says that these circumstances do not amount to "excusable neglect"

because the plaintiffs were represented by multiple attorneys

throughout the case and so the incapacity of one attorney should

not have prevented a timely filing. There is some force to that

argument, and the district court would not have abused its

discretion if it had denied the Union's Rule 4(a)(5) motion on that

basis. But the court opted to grant the motion instead, and given

the relative brevity of the delay, the attorney's plausible and

uncontested explanation for it, the absence of any discernible

prejudice, and the fact that the Massachusetts defendants did not

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oppose the motion, we conclude that the trial judge did not abuse

her discretion by doing so. See id. at 5 (deferring to the

district court's decision to grant an extension under Rule

4(a)(5)); United States v. Carson, 52 F.3d 1173, 1180 (2d Cir.

1995) (similar); Redfield v. Cont'l Cas. Corp., 818 F.2d 596, 604

& n.3 (7th Cir. 1987) (similar); see also 16A Wright, Miller, &

Cooper, Federal Practice & Procedure § 3950.3 (3d ed. 2004)

("Whether to grant an extension rests largely in the discretion of

the district court. If it finds excusable neglect or good cause

and grants an extension, the court of appeals should not

second-guess this determination and in this way defeat the appeal

. . . .").

B. Subject-Matter Jurisdiction

We turn to the question whether the Union's complaint

triggered the subject-matter jurisdiction of the district court.

Our review is de novo. Stewart v. Tupperware Corp., 356 F.3d 335,

337 (1st Cir. 2004). For the reasons that follow, we hold that the

action arises under federal law for purposes of 28 U.S.C. § 1331

and thus that the district court did have subject-matter

jurisdiction over the case.

1. Preemption Claims

Although styled as a complaint for declaratory judgment,

the Union's complaint in fact seeks both declaratory and injunctive

relief and, in Count II, asserts a claim directly under 42 U.S.C.

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§ 1983. For our purposes, the label of declaratory or injunctive

relief does not much matter. Though the declaratory judgment

device reverses the formal positions of the parties, it does not

alter the rules of federal jurisdiction. Skelly Oil Co. v.

Phillips Petroleum Co., 339 U.S. 667, 671 (1950). Accordingly, the

rule in declaratory judgment actions is that "if, but for the

availability of the declaratory judgment procedure, the federal

claim would arise only as a defense to a state created action,

jurisdiction is lacking." Franchise Tax Bd. v. Constr. Laborers

Vacation Tr., 463 U.S. 1, 16 (1983) (quoting 10A Wright, Miller, &

Kane, Federal Practice & Procedure § 2767 (2d ed. 1983)); see also

Penobscot Nation v. Georgia-Pacific Corp., 254 F.3d 317, 321 (1st

Cir. 2001); Playboy Enters., Inc. v. Pub. Serv. Comm'n, 906 F.2d

25, 30 (1st Cir. 1990). So we must determine whether the Union

could assert its preemption claims in a direct action against one

or more of the defendants (i.e., whether the claims could arise in

a non-defensive posture in a non-declaratory action).

The district court dismissed the Union's complaint

because it believed, erroneously, that the Union's preemption

claims are inherently defensive. It is true that "[o]rdinarily

federal pre-emption is raised as a defense to the allegations in a

plaintiff's complaint." Caterpillar, Inc. v. Williams, 482 U.S.

386, 392 (1987) (emphasis added). In such cases, the preemption

defense, even if valid, does not convert the action into one that

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"arises under" federal law for purposes of § 1331. "By

unimpeachable authority, a suit . . . does not arise under an act

of Congress or the Constitution of the United States because

prohibited thereby." Gully v. First Nat'l Bank, 299 U.S. 109, 116

(1936); see Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6

(2003); Caterpillar, 482 U.S. at 393; Franchise Tax Bd., 463 U.S.

at 12.

In many ways, this is simply an application of the "well-

pleaded complaint rule."7 Under that rule, with rare exceptions,

"a suit arises under the Constitution and laws of the United States

only when the plaintiff's statement of his own cause of action

shows that it is based upon those laws or that Constitution."

Beneficial Nat'l Bank, 539 U.S. at 6 (quoting Louisville &

Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)); Penobscot

Nation, 254 F.3d at 321-22. Where a defendant raises preemption as

a defense to a state-law cause of action, "[t]he most one can say

is that a question of federal law is lurking in the background,

just as farther in the background there lurks a question of

7
At oral argument, the parties phrased their arguments in
terms of whether the well-pleaded complaint rule "applies" to the
Union's complaint. That rubric is inapt: the well-pleaded
complaint rule is simply a rule for applying 28 U.S.C. § 1331. It
"applies" in every case in which subject-matter jurisdiction is
asserted under that statute, both in actions originally filed in
federal court and in those removed from state court. See Franchise
Tax Bd., 463 U.S. at 10 n.9. The question in this case is not
whether the rule applies but whether its requirements are
satisfied.

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constitutional law, the question of state power in our federal form

of government." Gully, 299 U.S. at 117. For this reason, a

defendant may not remove a state lawsuit to federal court by

asserting a preemption defense, "even if both parties admit that

the defense is the only question truly at issue in the case."

Franchise Tax Bd., 463 U.S. at 14. This principle is subject to a

few exceptions not applicable here, notably the doctrine of

"complete preemption." See generally Beneficial Nat'l Bank, 539

U.S. at 6-8.

A claim that a state regulation is preempted by a federal

statute, however, need not always arise as a defense when

injunctive relief is sought against state officials. See Franchise

Tax Bd., 463 U.S. at 12 n.12. A plaintiff may assert federal

preemption as an affirmative cause of action to enjoin state

officials from interfering with federal rights. In that context,

a claim of preemption -- though ultimately "defensive" in the sense

that it seeks to prevent harms threatened by state officials --

does constitute a federal question under § 1331. The Supreme Court

expressly approved of such claims in a footnote in Shaw v. Delta

Air Lines, Inc., 463 U.S. 85 (1983):

It is beyond dispute that federal courts have
jurisdiction over suits to enjoin state officials from
interfering with federal rights. See Ex parte Young, 209
U.S. 123, 160-62 (1908). A plaintiff who seeks
injunctive relief from state regulation, on the ground
that such regulation is pre-empted by a federal statute
which, by virtue of the Supremacy Clause of the
Constitution, must prevail, thus presents a federal

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 question which the federal courts have jurisdiction under
28 U.S.C. § 1331 to resolve.

Id. at 96 n.14; see also Franchise Tax Bd., 463 U.S. at 20 n.20.

Since Shaw, the Supreme Court has decided a variety of cases that

fit within this jurisdictional principle. See Sloss,

Constitutional Remedies for Statutory Violations, 89 Iowa L. Rev.

355, 380 & n.141 (2004) (collecting cases).

Here, the district court relied not on Shaw but on Public

Service Commission v. Wycoff Co., 344 U.S. 237 (1952). The two

cases are admittedly difficult to reconcile. In Wycoff, the

Supreme Court held that a declaratory judgment action against a

state utility commission did not involve a justiciable controversy.

Id. at 245. Though it declined to reach the question of statutory

subject-matter jurisdiction, the Court added the following oft-

quoted dictum:

Where the complaint in an action for declaratory judgment
seeks in essence to assert a defense to an impending or
threatened state court action, it is the character of the
threatened action, and not the defense, which will
determine whether there is federal-question jurisdiction
in the District Court.

Id. at 248 (emphasis added). This circuit has adhered to the

Wycoff dictum in the past. See Nashoba Communications Ltd. P'ship

No. 7 v. Town of Danvers, 893 F.2d 435, 437-38 (1st Cir. 1990);

Colonial Penn Group, Inc. v. Colonial Deposit Co., 834 F.2d 229,

233 (1st Cir. 1987); Greenfield & Montague Transp. Area v. Donovan,

758 F.2d 22, 26-27 (1st Cir. 1985). We have also recognized the

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tension between Wycoff and the Shaw footnote. See Playboy Enters.,

906 F.2d at 30 (noting that the Supreme Court in Shaw recognized

jurisdiction over claims apparently precluded by Wycoff "[w]ithout

explaining exactly why").

This history does not matter. A recent Supreme Court

case eliminates any doubt about the vitality of the Shaw footnote.

In Verizon Maryland Inc. v. Public Service Commission, 535 U.S. 635

(2002), a telephone company sued a state public utility commission

in federal court. Id. at 640. The complaint sought declaratory

and injunctive relief against the commission, alleging that an

order that the commission had issued against the company was

preempted by federal law. Id. The court of appeals held that the

company's complaint did not present a federal question under

§ 1331. Id. Citing Shaw, the Supreme Court reversed:

We have no doubt that federal courts have jurisdiction
under § 1331 to entertain such a suit. Verizon seeks
relief from the Commission's order "on the ground that
such regulation is pre-empted by a federal statute which,
by virtue of the Supremacy Clause of the Constitution,
must prevail," and its claim "thus presents a federal
question which the federal courts have jurisdiction under
28 U.S.C. § 1331 to resolve."

Id. at 642 (quoting Shaw, 463 U.S. at 96 n.14).

In light of Verizon, the district court in this case

plainly had subject-matter jurisdiction over the Union's complaint.

Like the plaintiff in Verizon, the Union has sued a state

administrative agency for declaratory and injunctive relief,

alleging that the agency has acted in a manner inconsistent with

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federal law. This is not merely the assertion of a federal issue

that, but for the declaratory judgment device, would arise only as

a defense to a state-law cause of action. Verizon and Shaw make

clear that in suits against state officials for declaratory and

injunctive relief, a plaintiff may invoke the jurisdiction of the

federal courts by asserting a claim of preemption, even absent an

explicit statutory cause of action.8

2. Section 1983

There is a further reason why the district court erred in

dismissing the action. The Union's complaint contains two separate

counts: Count I asserts a direct cause of action for preemption,

and Count II asserts a cause of action for preemption under 42

U.S.C. § 1983. The district court's decision did not address the

§ 1983 count.

Almost by definition, a claim under § 1983 arises under

federal law and will support federal-question jurisdiction so long

as it does not "clearly appear[] to be immaterial and made solely

for the purpose of obtaining jurisdiction." Bell v. Hood, 327 U.S.

678, 682-83 (1946); see Penobscot Nation, 254 F.3d at 322. Of

course, § 1983 does not itself confer substantive federal rights;

8
See also Fallon, Meltzer, & Shapiro, Hart & Wechsler's The
Federal Courts & The Federal System 903 (5th ed. 2003) ("While
there may be some lack of harmony in the case law, the rule that
there is an implied right of action to enjoin state or local
regulation that is preempted by a federal statutory or
constitutional provision -- and that such an action falls within
the federal question jurisdiction -- is well-established.").

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it simply provides a remedy for their deprivation. See Chapman v.

Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979). So the

Union's § 1983 claim will support jurisdiction in this case if it

colorably asserts that the MCAD deprived the Union of a specific

"right[], privilege[], or immunit[y] secured by the Constitution

and laws." 42 U.S.C. § 1983.9

We conclude that it does. The Supreme Court held in

Golden State Transit Corp. v. City of Los Angeles (Golden State

Transit II), 493 U.S. 103 (1989), that the Supremacy Clause is not

itself a source of rights enforceable under § 1983. See id. at

107. Still, a plaintiff wishing to assert a claim of preemption

may nevertheless invoke § 1983 if the allegedly preempting federal

statute does create such a right. See id. at 107 n.4; Playboy

Enters., 906 F.2d at 32. That test is readily satisfied here. The

Union alleges that the MCAD's adjudication of McGrath's complaint

is preempted not only under Garmon but also under the Machinists

9
The fact that the Union's § 1983 claim may support subject-
matter jurisdiction, of course, does not mean that the relief
sought in Count II is available. In 1996, Congress amended 42
U.S.C. § 1983 to provide that "in any action brought against a
judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable." Federal Courts Improvement Act of 1996, Pub. L. No.
104-317, § 309(c), 110 Stat. 3853. Because there has been no prior
declaratory decree in this case, the Union is not entitled to
injunctive relief on its § 1983 claim against the MCAD
commissioners. But because the Union could in theory be entitled
to declaratory relief, the § 1983 claim may still support federal
jurisdiction.

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doctrine, which recognizes that the NLRA specifically confers on

employers and employees a right to be free from governmental

regulation of the "peaceful methods of putting economic pressure on

one another." Machinists, 427 U.S. at 154. Such a claim is not

frivolous on the facts of this case, given that the MCAD has

asserted jurisdiction to regulate the conduct of Union members

picketing during a labor dispute. And in Golden State II, the

Supreme Court held that the Machinists doctrine embodies a

substantive right under the NLRA that Congress intended to be

enforceable under § 1983. See 493 U.S. at 111-13; see also Livadas

v. Bradshaw, 512 U.S. 107, 133-34 (1994).

Accordingly, because the Union's § 1983 claim is not

"immaterial and made solely for the purpose of obtaining

jurisdiction," Bell, 327 U.S. at 682-83, it is sufficient to confer

federal-question jurisdiction under 28 U.S.C. § 1331.10

III.

Having determined that the district court erred in

dismissing the Union's complaint for lack of subject-matter

jurisdiction, we must turn next to the question whether, under the

doctrine of Younger, the district court should decline to exercise

jurisdiction in deference to the ongoing MCAD proceedings. Because

10
To be clear, we do not hold that the Union is entitled to
prevail on its Machinists preemption claim. We simply hold that
Count II of the Union's complaint asserts a non-frivolous claim for
relief under 42 U.S.C. § 1983 and, consequently, is sufficient to
support federal-question jurisdiction.

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the district court found that it lacked subject-matter

jurisdiction, it did not reach the issue of Younger abstention,

though it did address the substantive question of preemption.11

Two different categories of exceptions to Younger are

potentially involved here. The first is the exception for state

court proceedings brought in bad faith. See Huffman v. Pursue,

Ltd., 420 U.S. 592, 611-12 (1975). The second concerns the

exceptions to Younger that arise out of the preemption doctrine and

the strong national interest in the uniformity of labor laws. See

New Orleans Public Service, Inc. v. City of New Orleans, 491 U.S.

350, 367 (1989) ("NOPSI"). As to the latter, the Younger analysis

is in the end a question of who should decide whether there is some

form of preemption by the federal labor laws: the state courts on

review of any MCAD order, subject to review by certiorari in the

Supreme Judicial Court, or the federal courts, which also have

jurisdiction over the matter. We say "some form" of preemption

because two types of preemption may be implicated by the MCAD

proceedings. First, there is the more typical issue of whether

federal substantive labor law conflicts with Massachusetts law

concerning the legality of the Union's conduct. See, e.g., Golden

11
Even if the district court had determined that it possessed
subject-matter jurisdiction, that ordering of analysis would not be
appropriate. Ordinarily, the Younger question must be decided
before decision on the merits of the underlying claim. See Hicks
v. Miranda, 422 U.S. 332, 346 (1975). The district court correctly
perceived, though, that the Younger and preemption issues are
related.

-22-
State Transit Corp. v. City of Los Angeles (Golden State I), 475

U.S. 608, 614 (1986). Second, there is the fundamentally different

question of Garmon "forum preemption," which concerns whether both

state and federal tribunals (including the MCAD) must "defer to the

exclusive competence of the [NLRB]." Garmon, 359 U.S. at 245.

There is no Supreme Court case directly on point as to the

intersection between Younger and Garmon. The most analogous case

from this circuit, Chaulk Servs., Inc. v. Mass. Comm'n Against

Discrimination, 70 F.3d 1361 (1st Cir. 1995), found Younger

abstention to be inappropriate in a similar, but not identical,

situation. Id. at 1370. Potentially, though, there are

significant differences between Chaulk Services and this case that

may or may not require a different result here.

As all of this suggests, resolution of the Younger

abstention question is extremely complicated. It turns on the

interplay of several different doctrines, including Younger itself,

the exception to Younger for "facially conclusive" preemption that

is left open in NOPSI, and the doctrine of "forum preemption"

established in Garmon. It also may well depend on the answer to

several questions that have not been briefed by any of the parties

and on information not available to us.

For these reasons, we remand the case for further

proceedings on the question of Younger abstention rather than

decide the issue on a blank slate. In the interests of providing

-23-
guidance to the parties and the district court, we frame the basic

issues. At first blush, this case might seem an easy one for

Younger abstention. Under the framework announced by the Supreme

Court in Middlesex County Ethics Committee v. Garden State Bar

Association, 457 U.S. 423 (1982), Younger abstention is ordinarily

required if (1) there is an ongoing state judicial proceeding

involving the federal plaintiff that (2) implicates important

state interests and (3) provides an adequate opportunity for the

federal plaintiff to assert his federal claims. See id. at 432;

Brooks v. N.H. Supreme Court, 80 F.3d 633, 638 (1st Cir. 1996).

The first and third requirements appear to be satisfied here; the

second is tied into the analysis below. But there are several

potentially applicable exceptions to Younger that frustrate any

simple resolution of the issue.

First, abstention under Younger is not appropriate for

prosecutions that are brought in bad faith. Huffman, 420 U.S. at

611 ("Younger . . . do[es] of course allow intervention in those

cases where the District Court properly finds that the state

proceeding is motivated by a desire to harass or is conducted in

bad faith . . . ."). The Union has argued that McGrath's complaint

with the MCAD meets the requirements for this exception. It claims

that ComGas, which it says actively funded the suit through 2000,

is using it as an "economic weapon . . . to harass the picketing

union members and Local 12004" and to evade the requirements of the

-24-
NLRA. They say that the Supreme Court specifically warned against

such behavior in Linn v. United Plant Guard Workers, 383 U.S. 53,

64 (1966). This argument is not a frivolous one; it is

fundamentally fact-bound and should be decided upon in the first

instance by the district court.

The second exception to Younger that may be applicable

here is significantly more complicated, and involves Younger's

requirement that the state judicial proceeding implicate an

important state interest. In NOPSI, the petitioner argued that

Younger does not require abstention in the face of a "substantial"

preemption claim because the state has no legitimate interest in

conducting a preempted proceeding. 491 U.S. at 364. Although the

Supreme Court rejected that argument, it left open the possibility

that Younger abstention might not be appropriate when a claim of

preemption is not merely "substantial" but "facially conclusive."

See id. at 367 (emphasis in original). Since NOPSI, cases from

both this circuit and other circuits have endorsed the existence of

this "facially conclusive" preemption exception to Younger.

Midwestern Gas Transmission Co. v. McCarty, 270 F.3d 536, 539 (7th

Cir. 2001); Communications Telesystems Int'l v. Cal. Pub. Util.

Comm'n, 196 F.3d 1011, 1017 (9th Cir. 1999); Chaulk Servs., 70 F.3d

at 1370.

The Union argues that this exception to Younger applies

here because it is "facially conclusive" that the MCAD proceedings

-25-
were preempted, because all12 of the conduct involved was "arguably

protected" or "arguably prohibited." It is not surprising that the

Union focuses on Garmon "forum preemption," as it is the broadest

form of preemption in this context. Under Garmon, when conduct is

either "arguably protected" by § 7 or "arguably prohibited" by § 8

of the NLRA, "the states as well as the federal courts must defer

to the exclusive competence of the [NLRB] if the danger of state

interference with national policy is to be averted." 359 U.S. at

244-45; Sears, Roebuck & Co. v. San Diego County Dist. Council of

Carpenters, 436 U.S. 180, 221 (1978). Garmon thus enforces

Congress's choice to vest the NLRB with "primary jurisdiction" over

conduct within the scope of the NLRA and thereby ensures a

"uniform, nationwide body of labor law interpreted by a centralized

expert agency." Tamburello v. Comm-Tract Corp., 67 F.3d 973, 976

(1st Cir. 1995). The Supreme Court has explained that in the

context of Garmon preemption, the term "primary jurisdiction" has

a meaning different from its usual import in administrative law:

when Garmon preemption applies, the state courts are permanently

divested of jurisdiction over the controversy. See Sears, Roebuck,

436 U.S. at 199 n.29.

12
This overstates the matter. For example, there may have
been intentional and malicious defamation, which under Linn v.
United Plant Guard Workers, 383 U.S. 53 (1966), the states may
regulate. See id. 63 ("The malicious utterance of defamatory
statements in any form cannot be condoned, and unions should adopt
procedures calculated to prevent such abuses.").

-26-
 It is clear that much of the conduct at issue in the MCAD

proceedings seems to be arguably protected or arguably prohibited

under Garmon, and thus potentially to warrant an exception to

Younger under NOPSI. Most notably, there is no question that the

insults and epithets that union members directed towards McGrath

while they were picketing are, at the very least, arguably

protected by § 7 of the NLRA.13 The NLRA clearly protects the right

of picketing workers to use a variety of harsh and insulting speech

-- including racial, ethnic, and homophobic slurs -- in furtherance

of their § 7 right to engage in "concerted activities for the

purpose of collective bargaining or other mutual aid or

protection." 29 U.S.C. § 157. See, e.g., Old Dominion Branch No.

496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S.

264, 283 (1974) ("[F]ederal law gives a union license to use

intemperate, abusive, or insulting language without fear of

restraint or penalty if it believes such rhetoric to be an

effective means to make its point."); Milk Wagon Drivers Union of

Chi., Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293

(1941) (peaceful picketing is protected despite "moment[s] of

animal exuberance"); Nat'l Council of Young Israel, 276 N.L.R.B.

13
The MCAD's December 2001 decision held that the NLRA does
not protect "racial or ethnic slurs shouted by union members during
a strike," and that likewise "there is no protection offered when
the slurs are homophobic." As we explain, this holding gravely
misstates federal law. Further, if such conduct were arguably
prohibited by the NLRA, that too would support preemption.

-27-
1123, 1136 & n.14 (1985) (calling replacement workers "[n]iggers"

was protected conduct under § 7); Ben Pekin Corp., 181 N.L.R.B.

1025, 1028 (1970) ("[O]ffensive, vulgar, defamatory, or opprobrious

remarks uttered during the course of protected, concerted

activities will not automatically destroy the right conferred by

the Act to engage in conduct otherwise safeguarded by its text.").

At the same time, it also may be "facially conclusive" that at

least the alleged instances in which union members made credible

threats of violence against McGrath are arguably prohibited by § 8

of the NLRA. See 29 U.S.C. § 158(b)(1)(A). See, e.g., NLRB v.

Union Nacional de Trabajadores, 540 F.2d 1, 6-7 (1st Cir. 1976) (in

dicta, observing that threats of physical harm by union members

against employees who refused to participate in a strike would be

prohibited under § 8 of the NLRA). Additionally, the Union's

actions may have been arguably prohibited under § 8 of the NLRA

because they took place in front of other bargaining-unit

employees, who in turn might have been coerced into supporting the

picket out of fear of being subjected to similar abuses. See Local

No. 207, Int'l Ass'n of Bridge, Structural, & Ornamental Iron

Workers Union v. Perko, 373 U.S. 701, 707 (1963); Union Nacional de

Trabajadores, 540 F.2d at 6-7. If so, both ComGas and McGrath

could have filed complaints with the NLRB.14

14
It is clear that McGrath or ComGas could have invoked NLRB
jurisdiction (a fact pertinent to the bad faith allegation). The
Commission held that McGrath "has no ability to bring a claim under

-28-
 In a similar case, a divided panel of this Court held in

Chaulk Services that abstention was not appropriate because the

state MCAD proceedings were clearly preempted by federal law. In

Chaulk Services, a labor union filed charges with the NLRB on

behalf of a female labor organizer who claimed her employer had

discriminated against her on the basis of her sex. 70 F.3d at

1363. While those NLRB charges were pending, the employee filed a

discrimination charge against the company with the MCAD. When the

MCAD refused to dismiss the proceeding as preempted under Garmon,

the company sued in federal district court to enjoin the MCAD from

adjudicating the complaint. Id. at 1363-64. The district court

abstained under Younger. Id. at 1364. Citing NOPSI's exception

for "facially conclusive" preemption claims, this court reversed,

the NLRA." That is plainly incorrect, as counsel for the MCAD
conceded at oral argument. NLRB regulations provide that "a charge
that any person has engaged in or is engaging in any unfair labor
practice affecting commerce may be made by any person." 29 C.F.R.
§ 102.9 (emphasis added). The regulations provide that the term
"person" has the meaning set forth in section 2 of the NLRA. 29
U.S.C. § 152. The NLRA, in turn, defines person to "include[] one
or more individuals, labor organizations, partnerships,
associations, corporations, legal representatives, trustees,
trustees in cases under title 11 of the United States Code, or
receivers." Id. § 152(1)
At a minimum, both McGrath and ComGas had the right to file a
charge with the NLRB that the Union's conduct was arguably
prohibited under § 8 of the NLRA, id. § 158. See, e.g., Local No.
207, Int'l Ass'n of Bridge, Structural, & Ornamental Iron Workers
Union v. Perko, 373 U.S. 701, 707 (1963) (claims of union
misconduct toward a supervisor may be cognizable under the NLRB
where such conduct would inevitably coerce non-supervisory
employees).

-29-
concluding that "under the Garmon doctrine it is readily apparent

that the Commission is acting beyond its jurisdictional authority

by entertaining [the] complaint, for it is readily apparent that

[the company's] conduct is at least arguably . . . subject to the

NLRA." Id. at 1370 (internal quotation marks omitted).

But Chaulk Services is distinguishable from this case in

at least one potentially important respect.15 In explaining why

Garmon preemption was "facially conclusive," the majority in Chaulk

Services emphasized that when the MCAD assumed jurisdiction and

began its investigations, there was already a pending NLRB

proceeding based on the same incident. See id. at 1368-69. This

case, by contrast, presents nearly the opposite circumstance:

neither side has ever filed a complaint with the NLRB, and the

Union now seeks an injunction against state proceedings that have

been pending for more than eight years.

15
In Chaulk Services the claimed offending conduct was sex
discrimination, which is prohibited by Congress in Title VII in
addition to being prohibited by state law, and so there was no
obvious conflict between state and federal law. Thus, one might
argue that Congress has a lesser interest in exclusive NLRB
jurisdiction in that situation. See Chaulk Services, 70 F.3d at
1374-75 (Lynch, J., dissenting). Here, by contrast, Congress has
not explicitly prohibited sexual orientation discrimination.
Furthermore, unlike in Chaulk Services, the employment
discrimination alleged here is not classic discrimination by an
employer against an employee. Rather, it is discrimination by
lower-level employees against a supervisor. It also took place
during a strike and a lock-out, which has been a traditional area
of federal regulation since enactment of the NLRA.

-30-
 The import of this distinction turns largely on at what

point, if ever, the Union had the ability to invoke the primary

jurisdiction of the NLRB. If the Union chose for strategic reasons

to argue the Garmon preemption point to the MCAD when it could have

gone to the NLRB, then its claim that the federal court should not

abstain under the facially conclusive preemption exception

recognized in NOPSI is significantly weaker. Under Sears Roebuck,

there is a strong argument that the rationale for Garmon preemption

is less powerful when a party voluntarily chooses to forego the

primary jurisdiction of the NLRB. See 436 U.S. at 202-03 (holding

that "the primary-jurisdiction rationale does not provide a

sufficient justification for pre-empting state jurisdiction over

arguably protected conduct when the party who could have presented

the protection issue to the Board has not done so and the other

party to the dispute has no acceptable means of doing so" (emphasis

in original)).

Still, we are uncertain when, if ever, the Union had the

ability to invoke the primary jurisdiction of the NLRB. Even if

during the strike itself the Union had not been able to initiate

such proceedings on the ground that its conduct was protected,

perhaps it could have gone to the NLRB after McGrath instituted the

MCAD proceedings. The answers to these questions have not been

briefed, and are potentially of significant relevance in

determining whether Chaulk Services governs here. In any case, the

-31-
difficult issues involved in the Younger abstention question should

be fully briefed and argued by the parties before they are

resolved.

IV.

The extension of time to file an appeal is affirmed, the

judgment of dismissal is reversed, and the case is remanded for

further proceedings consistent with this opinion. So ordered.

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