SECRETARY OF LABOR,

Complainant,

v.

PRICE CHOPPER SUPERMARKETS, A GOLUB CORPORATION COMPANY,

Respondent.

OSHRC Docket No. 90-0552

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

At issue in this case is whether 29 C.F.R. 1904.2(b)(2)[[1]] requires a supermarket chain to have an OSHA 200 illness and injury log physically present at each of its stores or whether the standard permits the chain to maintain its OSHA 200 logs at a central administrative location where the pertinent log may be furnished to the employee requesting it by mailing a copy to the employee's home or by sending it in a delivery truck to the store in about 48 hours. Administrative Law Judge Michael H. Schoenfeld held that Price Chopper complied with the standard because it maintained a log at its central office that could be made available to the other stores. The judge granted Price Chopper's motion for summary judgement and vacated the pertinent item in the citation issued by the Secretary of Labor ("Secretary"). We find that Price Chopper is required to maintain a log at the cited location. We therefore reverse the judge and affirm the Secretary's citation item.

Facts

The facts are essentially undisputed. Price Chopper operates a chain of grocery stores at 76 locations in the Albany, New York area. At a central office, it employs a government compliance clerk whose duties include maintenance of OSHA injury and illness logs. The clerk maintains separate OSHA 200 logs for each of Price Chopper's stores. Price Chopper's procedure has been for managers of the individual stores to report accidents and illnesses to the compliance clerk, who immediately enters recordable injuries and illnesses on the appropriate OSHA log. Price Chopper has posted a notice in each store advising employees that a copy of the OSHA log is available by contacting its government compliance clerk, whose telephone number is included in the notice. Upon request from any employee for a log, a copy of the log for the appropriate store is either mailed that day to the employee's home or included in the next truck shipment to the employee's store. Such shipments are received in the store within 48 hours of receipt of the request for the log.

The Citation Item at Issue

The Secretary issued an other-than-serious citation to Price Chopper alleging that it failed to comply with section 1904.2(b)(2) because it did not maintain a copy of the OSHA 200 log and summary of occupational injuries and illnesses--current to within 45 calendar days--at its Latham, New York store. The Secretary proposed no penalty. The citation noted that logs were maintained in Schenectady, New York, at the headquarters complex of Golub Corp., Price Chopper's parent company.

Judge's Decision and Order

The judge vacated the citation item. He concluded that:

Respondent's maintenance of the OSHA log at its central administrative office coupled with the posting of notices as to how to obtain the information and the procedure of immediate mailing of copies of the log to requesting employees complies with the requirements of the cited regulation.

The judge explained that the standard requires a copy of the OSHA 200 log to be "available" at each of the employer's establishments, and the plain and usual meaning of "available" includes both "present or ready for immediate use," as well as "accessible, obtainable," according to Webster's New Collegiate Dictionary. The judge concluded that if the cited regulation was meant to require physical presence of the log on the premises, it would have specified that.

Although the judge held that supplemental interpretative material need not be considered where, as here, the meaning of a regulation is plain on its face, he did consider and reject an argument by the Secretary that a 1986 publication issued by the Bureau of Labor Statistics, Recordkeeping Guidelines for Occupational Injuries and Illnesses ("1986 BLS"), supports her argument that the cited standard requires the OSHA 200 logs to be physically present at each of Respondent's stores.

Discussion

In our view, the meaning of section 1904.2 is clear. An employer may comply with section 1904.2(a) by maintaining "in each establishment" a log and summary of all recordable injuries and illnesses for that establishment and by entering each recordable injury or illness on the log and summary no later than six working days after receiving information that a recordable injury or illness has occurred. Alternatively, an employer is permitted by section 1904.2(b)[[2]], to maintain the log "at a place other than the establishment or by means of data-processing equipment, or both," if (1) "[t]here is available at the place where the log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occurred," and (2) at each establishment "there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45 calendar days."

We read "available" in both subsection (1) and subsection (2) to mean "present or ready for immediate use." The Secretary could have used even more specific language, but the provisions in the standard that require information to be "available at the place where the log is maintained" (subsection (b)(1)) and to be "available at the place where the log is maintained" (subsection (b)(1)) and to be "available" "[a]t each of the employer's establishments" (subsection (b)(2)) are sufficiently plain to be generally understood. See Savina Home Industries, Inc., 4 BNA OSHC 1956, 1957 & n.4, 1976-77 CCH OSHD 21,469, p. 25,770 & n.4 (No.12298, 1977)(Employer complied with section 1904.2(a) because it maintained logs "at" cited worksite).

Price Chopper had a centralized recordkeeping system, but it concedes that it did not have a copy of the OSHA 200 log at its Latham establishment. There is no evidence that the information could be telecopied to the Latham store.[[3]] These facts establish that it failed to comply with the cited standard. Price Chopper argues that the procedures it utilized--posting notices informing employees that they were entitled to free access to the log and making confidential access to the log available through its government compliance clerk, rather than through management personnel--promoted safety and health to a greater extent than mere strict compliance with the cited standard. Price Chopper's procedures do provide advantages to its employees that are not strictly required, but they do not relieve Price Chopper of its responsibility to have available at the cited establishment a copy of the OSHA 200 log current to within 45 days.[[4]] Maintaining a copy of the log at the supermarket under the terms of section 1904.2(b)(2) provides for quick access to it by the employees. Under Price Chopper's procedures, employees could have to wait up to two days before gaining access to the log, and the standard does not permit such a delay.

We also note that since the Secretary's interpretation of the word "available" to mean "ready for immediate use" is reasonable under the circumstances, that interpretation is entitled to deference over the judge's conflicting interpretation of "available" to mean "accessible," under the dictates of Martin v. OSHRC (CF & I Steel), 111 S. Ct. 1171, 1178 (1991).

We therefore reverse the decision of the judge granting Price Chopper's summary judgement motion, and we grant the Secretary's motion for summary judgment. Accordingly, the citation item alleging an other-than-serious violation of section 1904.2(b)(2) is affirmed with no penalty.

Edwin G. Foulke, Jr.,

Chairman

Donald G. Wiseman,

Commissioner

Velma Montoya,

Commissioner

Dated: February 21, 1992

 


SECRETARY OF LABOR,

Complainant,

v.

PRICE CHOPPER SUPERMARKETS, A GOLUB CORPORATION COMPANY,

Respondent.

Docket No: 90-0552

DECISION AND ORDER

GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGEMENT

This cases arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 (1970) ("the Act").

As a result of an inspection of a Price Chopper supermarket in Latham, New York, the Occupational Safety and Health Administration ("OSHA") issued a citation to Respondent on January 8, 1990, alleging that it had committed three other than serious violations of the Act. No civil penalties were proposed to be assessed.

Respondent timely filed a notice of contest as to item 2 of the citation. Items 1 and 3, which were not contested, evolved into final orders of the Commission pursuant to section 10(a) of the Act, 29 U.S.C. 659(a).

Complaint and answer were duly filed. During a prehearing telephone conference the parties agreed that there were no genuine issues of material fact. Based upon that representation, the Administrative Law Judge directed that the parties simultaneously submit cross motions for summary judgement which have been filed and considered.[[1]]

Because Respondent's procedures for maintaining the OSHA Form 200, Log and Summary of Occupational Injuries and Illnesses ("OSHA log"), resulted in a copy thereof being "available" at each of Respondent's establishments, Respondent did not fail to comply with the standard under which it was cited.

Respondent, under item 2 of the citation, was charged with failure to comply with the standard at 29 C.F.R. 1904.2(b)(2) which provides, in relevant part:

(b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment... under the following circumstances:

(2) At each of the employer's establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45 calendar days.

It is alleged by the Secretary that Respondent's failure to keep a copy of the log physically at the inspected location (thus at each individual supermarket) constitutes a violation of the cited standard. There is no allegation that the log as kept at Respondent's main office was incorrect in any way.

The undisputed facts are as follows. Respondent operates a chain of grocery stores at 76 locations in an area surrounding Albany, New York. It maintains a central office at which it employs a Government Compliance Clerk whose duties include the maintenance of the OSHA logs. A separate OSHA log is maintained by her for each of Respondent's stores. Reports of accidents and illnesses at each location are made to her by store managers.
She immediately enters recordable injuries in the appropriate OSHA log. A notice is posted in each store advising employees that a copy of the OSHA log is available by contacting the Government Compliance Clerk whose phone number is included in the notice. Upon request from any employee for the log, at the employees option, a copy of the log for the appropriate store is either mailed that day to the employee's home or included in the next truck shipment from the warehouse to his or her store. Such shipments are received at the store within 48 hours of the receipt of the request for the log.

The Secretary argues that the regulation;

specifically requires that a copy of the log reflecting separately the injury and illness experience of each establishment be available at each such establishment which is precisely what respondent has failed to do.

(Emphasis in original.) The underscoring of the wrong "each" serves only to confuse the issue in this case. Respondent has not been charged with failure to maintain a separate log for each of its establishments, nor is it claimed that Respondent is required to make available at each store the logs for all other stores.

The issue in this case is solely whether a copy of the OSHA log for each store must be physically on the premises of that store or whether maintaining individual OSHA logs for all stores at its central office and mailing a copy of the appropriate log directly to a requesting employee's home (or delivery within 48 hours to the employee's store) constitutes making the log "available" at the establishment as that term is used in the regulation. It does.

The Secretary's invitation to "defer" to the Department's "interpretation" of the regulation is declined.

First, the plain and usual meaning of "available" includes both "present or ready for immediate use" as well as "accessible, obtainable" according to Webster's New Collegiate Dictionary.

Second, if the cited regulation were to be one requiring the log's physical presence on the premises the regulation surely could have so stated. Supplemental interpretative material need not be considered where the meaning of the regulation is plain on its face.

In this regard, reliance by the Secretary on the few pages of the 1986 Bureau of Labor Statistics Guidelines for occupational Injuries and Illnesses ("1986 BLS") submitted by counsel would be misleading. The Secretary saw it to submit a photocopy of only the cover and 8 pages of the booklet which, in its entirety, is 84 pages in length. More importantly, included with the submission was only one of the five pages making up the section of the booklet entitled "Chapter III: Location, Retention, and Maintenance of Records." In order to ensure fairness to Respondent, the Administrative Law Judge, sua sponte,enters into evidence the whole booklet as Exhibit ALJ-1.[[2]]

A portion of the booklet not submitted by counsel contains the following less than clear explanation of the requirements of standard:

B-1.Q. I manage a grocery store that is part of a supermarket chain. May we keep all the OSHA records for our employees at our company's central administrative office ?

A. No. The OSHA records for these employees should be maintained at the work location to satisfy the requirements of the regulations .... However, even though the summary and supplementary records must be kept at the establishment, see the next section for the location exception for the log, OSHA No. 200.

1986 BLS, at p. 21.

The section regarding the "exception" reads, in pertinent part;

C-1. Q. Can we maintain the logs for our different facilities in one central administrative office rather than in each individual establishment ?

A. Yes. For centralized recordkeeping, the log, OSHA No. 200, may be maintained in some place other than the establishment, such as the central office. If that is done, the requirements listed above must be followed....

Id., at p.22.

Among the requirements to be followed is "a copy of the log updated to within 45 calendar days must be present at all times in the establishment." Id. The provisions, read together, mean either that the log, updated within 6 days of occurrences, can be kept at a central location if copies of the logs, current within 45 days of occurrences are present at each establishment or, if read as the Secretary urges, the "exception" would mean precisely the same thing as the regulation, effectively eliminating the exception.

I find that Respondent's maintenance of the OSHA log at its central administrative office coupled with the posting of notices as to how to obtain the information and the procedure of immediate mailing of copies of the log to requesting employees complies with the requirements of the cited regulation.

Accordingly, Respondent's motion for summary judgement is GRANTED.

It is ORDERED that, item 2 of the citation issued to Respondent on January 8, 1990, is VACATED.

Michael H. Schoenfeld

Judge, OSHRC

Dated: December 16, 1990

Washington, D.C.


FOOTNOTES:

[[1]] Section 1904.2 provides:

1904.2 Log and summary of occupational injuries and illness.

(a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working days after receiving information that a recordable injury or illness has occurred. For this purpose form OSHA No. 200 or an equivalent which is as readable and comprehensible to a person not familiar with it shall be used. The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200.

(b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data-processing equipment, or both, under the following circumstances:

(1) There is available at the place where the log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occurred, as required by paragraph (a) of this section.

(2) At each of the employer's establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45 calendar days.

[[2]] Because we find that the meaning of the cited regulation is plain on its face, we do not consider whether the 1986 BLS publication supports the Secretary's interpretation of the cited standard. See Howe v. Smith, 452 U.S. 473, 483 (1981)(when terms of statue are unambiguous, inquiry goes no further).

[[3]] Price Chopper raises the possibility of compliance with section 1904.2(b)(2) by facsimile transmission (FAX) of the OSHA 200 log from its central office to its individual stores. Although the facts in this case do not indicate that Price Chopper had this capability, we note that section 1904.2(b) recognizes "date-processing equipment" as a means of maintaining these records. In our view, the implementation and use of a reliable routine for the use of FAX transmissions under the circumstances here could achieve the same result as employer compliance with section 1904.2(b)(2). In support of this approach, we observe that OSHA Instruction CPL 2-2.38C (Oct. 22, 1990) allows for compliance with 29 C.F.R. 1926.59(g)(8)--which requires employers in the construction industry to maintain material safety data sheets "readily accessible during each work shift to employees when they are in their work area(s)"-- by means of "computers with printers, microfiche machines, and/or telefax machines..."

[[4]] Respondent relies on Adler & Neilson Co., 5 BNA OSHC 1130, 1977-78 CCH OSHD 21,609 (No. 13380, 1977), but the case weakens its position. There, the Commission held that maintenance of the annual summary of occupational injuries and illnesses at the employer's central office--but not at each establishment--constitutes compliance with 29 C.F.R. 1904.5(a). The Commission explained, however, that the regulation "requires only that the summary be complied for each establishment and not that it be maintained at each establishment" (emphasis in original). Id. at 1132, 1977-78 CCH OSHD at p. 25,940. The regulation cited in this case, section 1904.2(b)(2), requires that the OSHA log be available "[a]t each of the employer's establishments....."

[[1]] Rule 56 of the Federal Rules of Civil Procedure governing motions for summary judgment is applicable in proceedings before the Commission pursuant to Commission Rule 2, 29 C.F.R. 2200.2, Rules of Procedure of the Occupational Safety and Health Review Commission, 29 C.F.R. 2200.1 - .212, as amended, 55 Fed. Reg. 22780 - 4 (June 4, 1990)

[[2]] See, Rule 106, Federal Rules of Evidence.