An employee who files a complaint under section 405 of the Act may also pursue remedies under
grievance arbitration proceedings in collective bargaining agreements. In addition, the complainant may concurrently resort to other agencies for
relief, such as the National Labor Relations Board. The Secretary's jurisdiction to entertain section 405 complaints, to investigate, and to determine
whether discrimination has occurred, is independent of the jurisdiction of other agencies or bodies. The Secretary may proceed with the investigation
and the issuance of findings and orders regardless of the pendency of other proceedings.
However, the Secretary also recognizes the national policy favoring voluntary resolution of disputes
under procedures in collective bargaining agreements. By the same token, due deference should be paid to the jurisdiction of other forums established
to resolve disputes which may also be related to section 405 complaints.
Where complainant is in fact pursuing remedies other than those provided by section 405, the
Secretary may, in his or her discretion, postpone a determination of the section 405 complaint and defer to the results of such proceedings.
Postponement of determination. When a complaint is under investigation pursuant to 1978.103,
postponement of determination would be justified where the rights asserted in other proceedings are substantially the same as rights under section 405
and those proceedings are not likely to violate rights guaranteed by section 405. The factual issues in such proceedings must be substantially the
same as those raised by a section 405 complaint, and the forum hearing the matter must have the power to determine the ultimate issue of
Deferral to outcome of other proceedings. A determination to defer to the outcome of other proceedings
initiated by a complainant must necessarily be made on a case-by-case basis, after careful scrutiny of all available information. Before the Assistant
Secretary or the Secretary defers to the results of other proceedings, it must be clear that those proceedings dealt adequately with all factual
issues, that the proceedings were fair, regular, and free of procedural infirmities, and that the outcome of the proceedings was not repugnant to the
purpose and policy of the Act. In this regard, if such other actions initiated by a complainant are dismissed without adjudicator hearing thereof,
such dismissal will not ordinarily be regarded as determinative of the section 405 complaint.