[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1978.112]

[Page 202-203]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                          OF LABOR (CONTINUED)
 
PART 1978_RULES FOR IMPLEMENTING SECTION 405 OF THE SURFACE 
TRANSPORTATION ASSISTANCE ACT OF 1982 (STAA)--Table of Contents
 
                      Subpart B_Rules of Procedure
 
Sec. 1978.112  Arbitration or other proceedings.

    (a) General. (1) 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.
    (2) 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.
    (3) 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.

[[Page 203]]

    (b) Postponement of determination. When a complaint is under 
investigation pursuant to Sec. 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 discrimination.
    (c) 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 adjudicatory hearing thereof, 
such dismissal will not ordinarily be regarded as determinative of the 
section 405 complaint.