CHAULK SERVICES, INC., Plaintiff-Appellant, v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION, et al., Defendants-Appellees, 70 F.3d 1361

CABELLAS, District Judge. Plaintiff-appellant Chaulk Services, Inc. (“Chaulk”) originally brought this action for declaratory judgment, preliminary and permanent injunctive relief against the Massachusetts Commission Against Discrimination (“MCAD”) (“the Commission”), Petrina Dou-lamis/Sullivan (“Doulamis”) and the International Association of EMTs & Paramedics, NAGE, AFL-CIO (“the Union”), to prevent defendants-appellees from proceeding with the case of Doulamis v.

Chaulk Services, Inc., 93-BEM-2145, then pending before the MCAD, on the basis that the action was preempted by federal law, particularly, the National Labor Relations Act (“NLRA”) (“the Act”), 29 U.S.C. § 151 et seq. The district court abstained from deciding Chaulk’s preemption claim, citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) and Brotherhood of Locomotive Engineers v. MCAD, 695 F.Supp. 1321 (D.Mass.1988), and consequently dismissed Chaulk’s complaint.

We vacate the judgment below and remand the case to the district court. I. STATEMENT OF THE CASE A. Facts In the middle of 1993, the International Association of EMTs and Paramedics, NAGE, AFL-CIO, began a union organization campaign at Chaulk. Doulamis became involved in the campaign sometime during the fall of 1993, when she and Eric Burgess, a male Chaulk employee, wrote a letter to the president of Chaulk’s parent company calling for the organization of a union.

On November 10, 1993, Chaulk’s CEO Nicholas O’Neil and Joseph Gilmore, vice-president, as part of their own campaign against the union organization effort, met with Doulamis in an attempt to pressure her into becoming a nonunion advocate. Doulamis declined their invitation.

As a result of this meeting, the Union filed unfair labor practice charges on November 29, 1993 with the National Labor Relations Board (“NLRB”) against Chaulk, claiming that it coerced and intimidated Doulamis, a known union organizer, by questioning her regarding union activities and threatening retaliation for those union activities, in violation of the Act. On December 6 and 9,1993, the Union filed two additional charges with the NLRB, both of which alleged that Chaulk interfered with Doulamis’ labor activity rights and discriminated against her because of her union organization efforts.

Thereafter, the NLRB issued a complaint against Chaulk alleging specific violations of §§ 8(a)(1) and (3) of the NLRA, and charging that Chaulk had interfered with, restrained and coerced several employees, including Doulamis, in the exercise of rights guaranteed by § 7 of the Act. With respect to Doulamis, the complaint alleged that on November 29, 1993 Chaulk issued a written warning and on December 7, 1993 issued a letter addressed to Doulamis threatening her with discipline if she attended any future 401(

K) meetings held by Chaulk with its employees. In addition, the complaint charged that on December 2, 1993, Chaulk suspended the coauthor of the pro-union letter, Erie Burgess. According to the complaint, Chaulk engaged in this conduct because it mistakenly believed that Doulamis, together with several of her fellow employees, had engaged in misconduct arising out of union or other protected concerted activity. See Complaint and Notice of Hearing at ¶8 7-8.

It is also alleged that these employees formed, joined and assisted the Union and otherwise engaged in concerted activities, and that Chaulk’s conduct was a deliberate attempt to discourage the employees from engaging in these activities, in violation of sections 8(a)(3) and (1) of the Act. See Complaint and Notice of Hearing at Is 7-10. A full and comprehensive settlement agreement was reached between Chaulk and the NLRB in March 1995 regarding these claims.

As part of the settlement, Chaulk agreed to, inter alia, expunge from its files any reference to the transfer of Eric Burgess; the written warnings set forth in the complaints of Doulamis, Richard Graham, Chris Adler, Gary Winitzer, Jim Taubert and Jean Taubert; the suspensions of Eric Burgess, Chris Adler, Jim Taubert, Jean Tau-bert, Gary Winitzer, Michael Cook, Kathryn Edwards and James McLaughlin; and the terminations of Fran Wilkerson, John Borden and McLaughlin. In addition, Chaulk agreed to pay out approximately $12,000 in back pay to these employees.

Meanwhile, on December 1,1993, after the Union had already filed its first charge with the NLRB, Doulamis filed a complaint with the MCAD against Chaulk, claiming she had been a victim of unlawful sex discrimination. Specifically, she complained of being harassed about her union activity, allegedly because of her gender, in that the “males who are also involved [in the union activity] are not being harassed.” On February 18, 1994, Chaulk moved to dismiss Doulamis’ complaint at the MCAD for lack of jurisdiction, on the grounds that it was preempted by federal law.

On May 13, 1994, the MCAD issued an order denying the motion to dismiss and retaining jurisdiction over Doulamis’ discrimination claims, reasoning that it did not have to address the merits of the underlying labor dispute in order to resolve the allegations of gender discrimination.

The Commission then promptly issued a set of interrogatories to Chaulk, requesting detailed information about all known union organizers, their role in organizing efforts and any significant acts of union organizing known to appellant, including copies of any communications between Chaulk and Dou-lamis relative to the union organization effort. B. Proceedings Below The present action was filed in the United States District Court for the District of Massachusetts on December 8, 1994, seeking a declaratory judgment as well as an injunction barring the continued prosecution of Doulam-is’ complaint before the MCAD.

Chaulk claimed that the Commission’s assertion of state authority over her charge directly threatened and significantly interfered with the jurisdiction of the NLRB. As noted above, the district court granted MCAD’s motion to dismiss on abstention grounds. It did not decide the preemption issue. Chaulk now appeals the district court’s judgment. II. ANALYSIS A. Preemption Relying on the doctrine of preemption first enunciated in San Diego Building Trades v.

Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), appellant argues that the district court erred in allowing the Commission’s motion to dismiss on the grounds of Younger abstention and that it should have decided the preemption issue. Citing primarily to Bud Antle, Inc. v. Barbosa, 35 F.3d 1355 (9th Cir.1994), Chaulk asserts that when it is clear that the state tribunal is acting beyond the lawful limits of its authority, there is no principle of comity that is served by abstention. Id. at 1356.

Accordingly, it urges us to find the Younger abstention doctrine inapplicable to this case, address the merits of its preemption claim, and declare that appellee’s charge of sex discrimination before the Commission is indeed preempted by federal law. We begin by delineating the present scope of the so called Garmon preemption doctrine.

The Supreme Court held in Garmon that when an activity is arguably subject to § 7 or § 8 of the National Labor Relations Act, the states as well as the federal courts must defer to the exclusive competence of the NLRB if the danger of state interference with national labor policy is to be averted. Id. 359 U.S. at 245, 79 S.Ct. at 779-80. When Congress enacted the NLRA, it enacted comprehensive procedural rules and created the NLRB to administer this specially designed regulatory structure.

The result was a complex and interrelated scheme of federal law, remedies and administration designed to achieve uniformity in our national labor policy. Garmon, 359 U.S. at 242, 79 S.Ct. at 778; New York Telephone Co. v. New York Dept. of Labor, 440 U.S. 519, 527, 99 S.Ct. 1328, 1334, 59 L.Ed.2d 553 (1979); Jones v. Truck Drivers Local Union No. 299, 838 F.2d 856, 872 (6th Cir.1988) (Merritt, J., concurring in part and dissenting in part). In order to achieve the desired uniformity, Congress entrusted the

interpretation and enforcement of the NLRA to a centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience. See Garmon, 359 U.S. at 242, 79 S.Ct. at 778. This administrative scheme was designed to avoid the danger of conflicting or incompatible adjudications such as would inevitably result from having multiple forums, with their diverse procedures, entertain claims under the NLRA. Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, 346 U.S. 485, 490-91, 74 S.Ct. 161, 165-66, 98 L.Ed. 228 (1953). The Gar-mon rule is therefore intended to preclude state interference with the NLRB’s

interpretation and enforcement of the integrated scheme of regulation established by the NLRA. Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 613, 106 S.Ct. 1395, 1398, 89 L.Ed.2d 616 (1986). Withal, the Garmon rule admits of some exceptions to the NLRB’s primary jurisdiction. For instance, where the conduct at issue is of only “peripheral concern” to federal labor policy, the states are not precluded from regulating the activity. Garmon, 359 U.S. at 243, 79 S.Ct. at 778-79.

Similarly, state action is not preempted where the regulated conduct touches interests “so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, courts cannot infer that Congress has deprived the states of the power to act.” Id. When called to determine whether these exceptions apply, courts must balance the state’s interest in remedying the effects of the challenged conduct against both the interference with the NLRB’s ability to adjudicate the controversy and the risk that the state will approve conduct that the NLRA prohibits. Belknap, Inc. v.

Hale, 463 U.S. 491, 498-499, 103 S.Ct. 3172, 3177, 77 L.Ed.2d 798 (1983); NLRB v. State of Ill. Dept. of Emp. Sec., 988 F.2d 735, 739 (7th Cir.1993). In doing so, we intentionally focus on the conduct at the root of this controversy, namely Chaulk’s alleged interference with Doulamis’ union activities, as opposed to the descriptive title of sex discrimination given to her cause of action before the MCAD.

That is because preemption is designed to shield the system from conflicting regulation of conduct. “It is the conduct being regulated, not the formal description of governing legal standards that is the proper focus of concern.” Amalgamated Ass’n of St., E.R. & M.C. Emp. v. Lockridge, 403 U.S. 274, 292, 91 S.Ct. 1909, 1920, 29 L.Ed.2d 473 (1971). See also, Garmon, 359 U.S. at 246, 79 S.Ct. at 780 (“It is not the label affixed to the cause of action under state law that controls the determination of the relationship between state and federal jurisdiction”).

Doulamis’ complaint highlights the risk that a state cause of action will touch on an area of primary federal concern. She complains of incidents of interference with her union activities as a union organizer. The very same conduct provides the factual basis for the unfair labor practice charges brought by the Union on her behalf, which were eventually incorporated into the complaint and notice of hearing issued by the NLRB. Her claims are fundamentally grounded in an assertion that the rights which her employer interfered with involve her union activity.

Where, as here, the ease involves conduct arguably prohibited by § 8 of the Act, the NLRB has broad authority to determine the appropriate remedy for wronged employees. “In fact, since remedies form an ingredient of any integrated scheme of regulation, to allow the state to grant a remedy here which has been withheld from the NLRB only accentuates the danger of conflict.” Garmon, 359 U.S. at 247, 79 S.Ct. at 781; Richardson v. Kruchko & Fries, 966 F.2d 153, 157 (4th Cir.1992). Board authority over claims of interference with union activities is not merely of peripheral concern to the Act.

Rather, the Board’s authority to remedy such practices is central to its purpose. See Tamburello v. Comm-Tract Corporation, 67 F.3d 973, 978 n. 5 (1st Cir.1995). Moreover, the fact that the Union clearly considered Chaulk’s conduct an unfair labor practice, and that the Board entertained such charges, only buttresses the Court’s conclusion that said conduct is not only “arguably”, but obviously prohibited under

section 8(

a) of the NLRA. It also highlights the very real danger of interference with the NLRB’s jurisdiction, as it was precisely the Board’s timely intervention which in this case led to the agreement through which Chaulk pledged, among other things, not to engage in the challenged conduct, or take similar actions to hinder its employees in their union activities.

Significantly, the Supreme Court has held that in cases where the underlying conduct is arguably prohibited by the NLRA, application of the so-called “local interests” exception hinges, in the first place, upon the existence of a significant state interest in protecting its citizens from the challenged conduct. In second place, the controversy which could be presented to the state court must be different from that which could have been presented to the NLRB. Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 196-97, 98 S.Ct. 1745, 1757-58, 56 L.Ed.2d 209 (1978).

See also, Tamburello v. Comm-Tract Corporation, 67 F.3d 973, 980 (1st Cir.1995). Under the Sears rationale, the critical inquiry is whether the controversy presented to the state court is identical to or different from that which could have been presented to the NLRB. Sears, 436 U.S. at 197, 98 S.Ct. at 1757-58. The Court reasoned that it is only in the former situation that a state’s exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the Garmon doctrine was designed to avoid. Id.

We assume arguendo that the Commonwealth of Massachusetts has a significant interest in protecting its citizens against sex discrimination in their employment. Following the guidelines set forth by the Supreme Court in Sears, we therefore examine whether the controversy before the state forum would indeed be the same as that which could be brought before the NLRB. Id.

In this regard, it is telling that the Union, upon learning of Chaulk’s alleged interference with Doulamis’ activities as a union organizer, promptly filed an unfair labor practice charge on her behalf, claiming violations of § 8 of the Act — thereby clearly characterizing the controversy as a labor dispute, subject to the NLRB’s primary jurisdiction.

For its part, the NLRB received the Union’s allegations regarding Chaulk’s conduct — the same conduct that would later form the basis for Doulamis’ discrimination claim before the MCAD — investigated them, proceeded then to issue a Complaint and Notice of Hearing, and eventually settled the matter. Plainly, this is not a case where the NLRB declined to exercise its lawful jurisdiction over a labor controversy, or where the NLRB’s actual exercise of jurisdiction remains a matter of speculation.

On the contrary, the Board in this case moved aggressively to acquire such jurisdiction and bring the matter to a full and speedy resolution. Furthermore, even Doulamis’ own pleadings before the Commission couch her claims in terms of a labor dispute within the NLRB’s primary jurisdiction. Her complaint accuses Chaulk of harassment “about [her] union activities.” She also claims to have been “intimidated by Mr.

O’Neil about involvement in union activity” and “accused of distracting the other employees with union activity.” As noted above, such conduct on the part of Chaulk, if adequately established through competent evidence, would constitute an undue interference with Doulamis’ rights under § 7 of the NLRA and consequently a violation of § 8(a)(1) of the Act. The application of additional remedies to the conduct here at issue only invites conflict.

As the Supreme Court stated in Garmon, “[t]he obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” Id. at 247, 79 S.Ct. at 780. See Sears, Roebuck & Co., 436 U.S. at 193-94, 98 S.Ct. at 1755-56 (“[T]he pertinent inquiry is whether the two potentially conflicting statutes [are] brought to bear on precisely the same conduct.”) (citations omitted). As discussed above, Doulamis’ claim of sex discrimination is founded upon the identical facts which provided the basis for the unfair labor practices charge brought on her behalf by the Union.

Accordingly, under the Garmon rationale, her claim before the Commission is expressly preempted. Moreover, as pointed out by Chaulk, the interrogatory issued by the MCAD in the course of the investigation and prosecution of Doulamis’ case belies the Commission’s assertion that it need not delve into the labor aspects of the controversy in order to dispose of her gender discrimination claims. Rather, the interrogatory is further proof that issues of labor law ordinarily considered to be within the NLRB’s primary jurisdiction are precisely the type of questions that lie at the heart of this controversy.

Finally, in order to determine the merits of Doulamis’ claims of sex discrimination, the MCAD will have to decide whether in fact Doulamis was engaged in protected union activity, and if so, whether she was engaged in the same type of union activity as the other union organizers. Such a finding requires that the MCAD become embroiled in a factual and legal determination of what constitutes union activity, a task which has been expressly reserved to the jurisdiction of the NLRB.

More importantly, if the Commission were allowed to entertain Doulamis’ claim of sexual discrimination, there is the potential risk that it will incorrectly apply the substantive rules governing labor controversies laid out by Congress in the NLRA. It is precisely this potential for incompatible or conflicting adjudications that Congress sought to avoid by leaving these determinations in the first instance to the NLRB.

In the end, no recharacterization of this claim can obscure the fact that, at bottom, this is a classic example of an unfair labor practice claim of the kind traditionally handled in the first instance by the NLRB. Since the controversy before the MCAD and that resolved by the NLRB are the same in a fundamental respect, and the risk of interference with the Board’s jurisdiction is obvious and substantial, we hold that the MCAD has no jurisdiction to entertain Doulamis’ charge of sexual discrimination based on her employer’s alleged interference with her union activities.

International Union of Operating Engineers v. Jones, 460 U.S. 669, 674, 103 S.Ct. 1453, 1457-58, 75 L.Ed.2d 368 (1983). B. Abstention We turn now to what is in essence the threshold issue in this appeal — whether the district court erred in abstaining under the Younger doctrine. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court should not enjoin a pending state criminal proceeding except in the very unusual situation that an injunction is necessary to prevent great and immediate irreparable injury.

Younger stands for the proposition that principles of comity require “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States are left free to perform their separate functions in their separate ways.” Id. at 44, 91 S.Ct. at 750-51. The Court has since applied its reasoning in Younger to civil proceedings in which important state interests are involved. See Huffman v.

Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernández, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). In Ohio Civil Rights Comm’n v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), the principles of comity first announced in Younger were made extensive to state administrative proceedings.

As a result, where (1) vital state interests are involved, (2) in an ongoing state judicial (or administrative) proceeding, a federal court should abstain from exercising its jurisdiction over a claim, (3) unless state law clearly bars the interposition of the constitutional claims. See Middlesex County Ethics Comm. v. Garden State Bar Assn. 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). “The pertinent inquiry is whether state proceedings afford an adequate opportunity to raise the constitutional claims.” Middlesex, supra.

The dissent asserts that, rather than a principle of discretionary deference, Younger abstention requires a district court to abstain whenever a case falls within the doctrine’s parameters. To the extent it relies on the Supreme Court’s decision in Colorado River Water Conservation District v. United States, 424 U.S. 800, 816 n. 22, 96 S.Ct. 1236, 1246 n. 22, 47 L.Ed.2d 483 as support for this blanket rule, however, we respectfully differ.

The cited passage on which the dissent relies clearly refers to that category of cases where federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings. And even for that category of cases, the Supreme Court makes clear that abstention is only appropriate absent bad faith, harassment, or a patently invalid state statute. Id. at 816, 96 S.Ct. at 1245-46.

In fact, Colorado River strongly reaffirmed the basic principle that abstention from the exercise of federal jurisdiction is the exception, not the rule: “The doctrine of abstention, under which a district court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it.

Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest. It was never a doctrine of equity that a federal court should exercise its judicial discretion to dismiss a suit merely because a State court could entertain it.” Colorado River, 424 U.S. at 813-14, 96 S.Ct. at 1244 (emphasis supplied; citations omitted). See also, New Orleans Public Service, Inc. v.

Council of the City of New Orleans, 491 U.S. 350, 359, 109 S.Ct. 2506, 2513, 105 L.Ed.2d 298 (1989). The Commission argues that the case at bar fits squarely within the principles of Younger abstention. We disagree. First, the procedural posture of this case differs from that of the customary case where abstention is traditionally applied. Ordinarily, federal courts abstain from the exercise of jurisdiction over a particular controversy out of respect for an ongoing state proceeding begun before the federal action.

It is thought that this procedural mechanism forestalls the friction that can arise when the business of the two systems — state and federal — overlaps. But the notion of comity, which to a great extent underlies the Younger doctrine of abstention, must accommodate the legitimate interests of both the state and national governments. Younger, 401 U.S. at 44, 91 S.Ct. at 750-51; Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10, 107 S.Ct. 1519, 1525-26, 95 L.Ed.2d 1 (1987).

In abstaining, the court below seemingly focused on the situation that existed on December 8, 1994, when Chaulk’s complaint for declaratory and injunctive relief was filed in the United States District Court for the District of Massachusetts. In doing so however, the court ignored the fact that an unfair labor practice charge, based on the same facts underlying Doulamis’ complaint of sex discrimination, had been filed against Chaulk prior to her discrimination claims and was pending before the NLRB at the time of the filing of her action before the Commission.

In addition, shortly after Doulamis filed her action, additional charges were filed by the Union, and the Board continued to exercise its jurisdiction over these claims. Federal courts seek to avoid needless conflict with state agencies and withhold relief by way of injunction where state remedies are available and adequate. Alabama Public Service Commission v. Southern Railroad Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951).

But where Congress, acting within its constitutional authority, has vested a federal agency with exclusive jurisdiction over a subject matter and the intrusion of a state would result in a conflict of functions, the federal court may enjoin the state proceeding in order to preserve the federal right. American Federation of Labor v. Watson, 327 U.S. 582, 593-95, 66 S.Ct. 761, 766-67, 90 L.Ed. 873 (1946); Bowles v. Willingham, 321 U.S. 503, 510-11, 64 S.Ct. 641, 645-46, 88 L.Ed. 892 (1944); Public Utilities Commission of Ohio v. United Fuel Gas Co., 317 U.S. 456, 468-70, 63 S.Ct. 369, 375-77, 87 L.Ed. 396 (1943).

This case is similar to Freehold Cogeneration Associates, LP v. Board of Regulatory Commissioners of New Jersey, 44 F.3d 1178 (3d Cir.1995). In that case, Freehold sought a declaratory judgment in the United States District Court for the District of New Jersey that the Board of Regulatory Commissioners of the State of New Jersey (“BRC”) was preempted by the Federal Public Utility Regulatory Policies Act (“PURPA”) from modifying the terms of a previously approved power purchase agreement between Freehold and Jersey Central Power and Light Company (“JCP & L”), a New Jersey public utility.

Freehold also sought an order enjoining the ongoing BRC proceedings. The district court dismissed for lack of subject matter jurisdiction. On appeal, one of the arguments raised by JCP & L was that the federal court should abstain from resolving the merits of the case even if it was found to possess subject matter jurisdiction. The Third Circuit rejected the argument saying: [O]ur concern is with carrying out a federal statutory scheme promoting the development of alternative energy sources. The alleged intrusive action is not by the federal government, but, on the contrary, by a state regulatory agency.

We conclude that abstention is not appropriate in this case and does not warrant any extended discussion. Freehold Cogeneration, 44 F.3d at 1187 n. 6. As in Freehold, we are concerned here with carrying out a federal statutory scheme, in this case one promoting the development of a uniform national labor policy. The alleged intrusive action is not by the federal government, but by the MCAD’s purported regulation of conduct within the NLRB’s jurisdiction.

We note that in the particular context of this case, the application of Younger abstention would result in significant prejudice to Chaulk, who entered into a comprehensive settlement agreement with the NLRB through which all unfair labor practice claims were resolved, subject to Chaulk’s compliance with the conditions set forth therein, only to be faced with the prospect of having to defend its actions once again, this time before a state forum. Such an expansive

interpretation of the abstention doctrine would have the effect of encouraging duplica-tive litigation, with the resultant waste of judicial and administrative resources, as well as the danger to federal-state relations that could result from conflicting adjudications.

Under these circumstances, where a federal agency with primary jurisdiction over the controversy has already exercised said jurisdiction, it would be inconsistent with the above mentioned principles of comity and equal respect for the interests of both the federal and state government for a federal court to abstain on Younger grounds from deciding a claim properly before it, in order to give way to a state administrative action filed after the federal proceedings are underway. Put simply, comity works both ways.

The Commission nevertheless urges us to extend the application of Younger and its progeny to the circumstances of this case. To this end, MCAD argues that the facts before us satisfy the relevant three part test set out by the Supreme Court in Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521. As it is however, even an analysis of the ease within this framework leads us to the same conclusion. Abstention was improper in this case. We explain.

A number of courts have held that Younger abstention is inappropriate where a claim of preemption is “facially conclusive” or “readily apparent”, because no significant state interests are served when it is clear that the state tribunal is acting beyond the lawful limits of its authority. Bud Antle, Inc. v. Barbosa, 35 F.3d 1355, 1365-66 (9th Cir.1994), as amended by, 45 F.3d 1261, 1272-73 (9th Cir.1994); Gartrell Construction, Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir.1991) (citing Champion International Corp. v. Brown, 731 F.2d 1406 (9th Cir.1984); National R.R. Passenger Corp. v.

Florida, 929 F.2d 1532, 1537 n. 12 (11th Cir.1991) (citing Baggett v. Department of Professional Regulation, 717 F.2d 521, 524 (11th Cir.1983)); Southwestern Bell Tel. v. Ark. Public Service Commission, 824 F.2d 672, 673 (8th Cir.1987); Kentucky W. Va. Gas Co. v. Pennsylvania Pub. Util. Comm’n, 791 F.2d 1111, 1115 (3d Cir.1986). Chaulk asserts that the Commission is patently acting beyond its jurisdictional boundaries and therefore, no principle of comity precluded the district court from entertaining its claim of preemption on the merits.

In response, the Commission cites the Supreme Court’s decision in New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (“NOPSI”) for the proposition that the mere assertion of a substantial constitutional challenge to state action, such as an argument of federal preemption engenders, will not alone compel the exercise of federal jurisdiction. Whatever the merits of MCAD’s assertion however, even the NOPSI decision leaves open the possibility that a “facially conclusive” claim of preemption might render abstention inappropriate.

Id. at 367, 109 S.Ct. at 2517-18. Consequently, we examine the merits of Chaulk’s contention that abstention is also inappropriate because preemption is readily apparent in this context. We have explained above the particularities of Doulamis’ claims before the Commission. She complains of incidents of interference with her union activities as a union organizer. We have observed that the very same conduct provides the factual basis for the unfair labor practice charges brought by the Union on her behalf.

We have also highlighted the fact that the NLRB incorporated these charges into a complaint and notice of hearing claiming violations to sections 8(a)(1) and 8(a)(3) of the NLRA. As we have noted, her claims are fundamentally grounded in an assertion that the rights which her employer interfered with involve her union activity. Under these circumstances, were we to allow Doulamis’ state claims to go forward by simply artfully pleading her claim of unfair labor practices as one motivated by a discriminatory animus because of her gender, we would be compromising the NLRB’s role as chief arbiter of labor disputes.

Indeed, there are few unfair labor practices which could not be similarly repackaged. Similarly aggrieved individuals could use such an opening to bypass the NLRB merely by ascribing a myriad of discriminatory motives to the relevant conduct (i.e. age, race, religious belief, etc.), thereby creating a system of labor dispute adjudication parallel to the NLRB, leaving the state and federal courts to grapple piecemeal with issues Congress intended primarily for NLRB resolution.

Faced with this particular factual scenario, we find that under the Garmon doctrine it is “readily apparent” that the Commission is acting beyond its jurisdictional authority by entertaining Doulamis’ complaint, for it is readily apparent that Chaulk’s conduct at issue is at least arguably prohibited by, and thus subject to the NLRA. Accordingly, we hold that abstention was inappropriate and that the district court abused its discretion when it dismissed Chaulk’s complaint on the basis of Younger abstention. III. CONCLUSION In sum, pursuant to the Garmon preemption doctrine, we find that Ms.

Doulamis’ claims are preempted by the NLRA, thereby depriving the MCAD of jurisdiction to entertain her action based on gender discrimination. In addition, we find that abstention was inappropriate in this case, as the principles of comity and of equal respect for state and federal functions weighed against such an abdication of federal jurisdiction over the present controversy. Accordingly, Chaulk is entitled to injunctive relief, consistent with this opinion.

Finally, with regard to MCAD’s argument that the Eleventh Amendment bars Chaulk’s claims against the Commission, we point out that the Supreme Court has recognized that the Eleventh Amendment does not preclude properly pleaded actions against state officials when the relief sought is prospective and equitable in nature. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).

We therefore reverse the judgment of the district court and remand the case, so that Chaulk may address any pleading deficiencies that currently preclude the continued prosecution of its petition for relief. Reversed and remanded. . The Union filed several additional unfair labor practice charges against Chaulk stemming from its alleged interference with the protected rights of numerous other employees. Here, we refer in particular only to those which, according to the parties, involve charges of unlawful conduct directed against Doulamis.

Furthermore, while Doulamis is not named as the aggrieved employee in these charges, both parties agree that the employee referred to therein is, in fact, Doulam-is. . Courts have recognized a third exception to the Garmon doctrine where Congress has expressly carved out such an exception to the NLRB’s primary jurisdiction. See Tamburello v. Comm-Tract Corporation, 67 F.3d 973, 977 (1st Cir.1995) (citing Vaca v. Sipes, 386 U.S. 171, 179-80, 87 S.Ct. 903, 910-11, 17 L.Ed.2d 842 (1967); Brennan v. Chestnut, 973 F.2d 644, 646 (8th Cir.1992)).

Congress has not made an exception to the NLRB’s primary jurisdiction for claims alleging sex discrimination in the context of an unfair labor practice. See Jones v. Truck Drivers Local Union, 838 F.2d at 861 (sexual discrimination is a breach of duty of fair representation and within scope of § 8 of the NLRA); NLRB v. Local 106, 520 F.2d 693 (6th Cir.1975) (same). This exception therefore does not apply to the facts in this case. . MCAD presses the argument that gender-based discrimination is not even within the realm of prohibited activities under the NLRA.

According to MCAD, the scope of prohibited discrimination under the Act is limited to discrimination based on union activities or membership. Still, the argument has been made successfully that sexual discrimination constitutes an unfair labor practice under § 8 of the NLRA. See Jones v. Truck Drivers Local Union, 838 F.2d at 861 (sexual discrimination is a breach of duty of fair representation and within scope of § 8 of the NLRA); NLRB v. Local 106, 520 F.2d 693 (6th Cir.1975) (same). . We note that Sears is not entirely on point, as it differs from the instant case in at least one fundamental respect.

In that case, the Court was presented with a situation where the party seeking relief in the state forum had no right to invoke the Board’s jurisdiction and the party that had the right to invoke the Board's jurisdiction had failed to do so. The Court expressed concern that in the circumstances of that case, Sears may not have a chance for a hearing on its claims if state jurisdiction were preempted without any assurance that the dispute might eventually be brought before the NLRB.

The Court reasoned that preemption was justified only when an aggrieved party has a reasonable opportunity either to invoke the Board's jurisdiction himself or else to induce his adversary to do so. Id. at 201, 98 S.Ct. at 1759-60. Here, of course, there is no such concern, as the Union filed the unfair labor practice charges with the NLRB even before Doulamis filed her gender discrimination claims before the Commission. . The dissent devotes a considerable number of pages to the issue of whether Title VII and the NLRA provide concurrent remedies.

The Supreme Court has made clear however, that when a state proceeding is claimed to be preempted by the NLRA under Garmon, the issue is a choice-of-forum rather than a choice-of-law question. See International Longshoremen's Association v. Davis, 476 U.S. 380, 391, 106 S.Ct. 1904, 1912, 90 L.Ed.2d 389 (1986). As such, "it is a question whether the State or the Board has jurisdiction over the dispute.” Id. If — as here — there is preemption under Garmon, then state jurisdiction is extinguished. Id. See also, International Union of Operating Engineers v.

Jones, 460 U.S. at 680-81, 103 S.Ct. at 1460-61; Sears, 436 U.S. at 199 n. 29, 98 S.Ct. at 1758 n. 29; Garmon, 359 U.S. at 245, 79 S.Ct. at 779-80.