South Carolina Code of Regulations
Chapter 71 - DEPARTMENT OF LABOR, LICENSING AND REGULATION-DIVISION OF LABOR
Article 1 - OCCUPATIONAL SAFETY AND HEALTH REGULATIONS
Subarticle 10 - DISCRIMINATION AGAINST EMPLOYEES EXERCISING RIGHTS UNDER THE SOUTH CAROLINA OCCUPATIONAL SAFETY AND HEALTH ACT
Section 71-1018 - Arbitration Or Other Agency Proceedings

Universal Citation: SC Code Regs 71-1018

Current through Register Vol. 48, No. 9, September 27, 2024

A. General.

(1) An employee who files a complaint under Section 41-15-510 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 Commissioner's jurisdiction to entertain Section 41-15-510 complaints, to investigate, and to determine whether discrimination has occurred, is independent of the jurisdiction of other agencies or bodies. The Commissioner may file action in the Court of Common Pleas regardless of the pendency of other proceedings.

(2) However, the Commissioner also recognizes the State and national policies favoring voluntary resolution of disputes under the procedures in collective bargaining agreements. See e.g., Boy's Markets, Inc. v. Retail Clerks, 398 U.S. 235(1970); Republic Steel Corp. v. Maddox, 379 U.S. 650(1965); Carey v. Westing house Electric Co., 375 U.S. 261(1964); Collier Insulated Wire, 192 NLRB No. 150 (1971). Cf. Section 41-17-10 et. seq., Code of Laws of South Carolina, 1976. 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 41-15-510.

(3) Where a complainant is in fact pursuing remedies other than those provided by Section 41-15-510, postponement of the Commissioner's determination and deferral to the results of such proceedings may be in order. See Burlington Truck Lines, Inc., v. U.S., 371 U.S. 156(1962).

B. Postponement of determination. Postponement of determination would be justified where the rights asserted in other proceedings are substantially the same as rights under Section 41-15-510 and those proceedings are not likely to violate the rights guaranteed by Section 41-15-510. The factual issues in such proceedings must be substantially the same as those raised by Section 41-15-510 complaint, and the forum hearing the matter must have the power to determine the ultimate issue of discrimination. See Rios v. Reynolds Metals Co., F.2d (5th Cir., 1972), 41 U.S.L.W. 1049 (Oct. 10, 1972); Newman v. Avco Corp., 451 F.2d 743 (6th Cir., 1971).

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-to-case basis, after careful scrutiny of all available information. Before deferring 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 41-15-510 complaint.

Disclaimer: These regulations may not be the most recent version. South Carolina may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.