“Docket No. 90-0552 SECRETARY OF LABOR,Complainant, v. PRICE CHOPPER SUPERMARKETS, A GOLUB CORPORATION COMPANY, Respondent.OSHRC Docket No. 90-0552DECISIONBefore: 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 logphysically present at each of its stores or whether the standard permits the chain tomaintain its OSHA 200 logs at a central administrative location where the pertinent logmay be furnished to the employee requesting it by mailing a copy to the employee’s home orby sending it in a delivery truck to the store in about 48 hours. Administrative Law JudgeMichael H. Schoenfeld held that Price Chopper complied with the standard because itmaintained 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 pertinentitem in the citation issued by the Secretary of Labor (\”Secretary\”). We findthat Price Chopper is required to maintain a log at the cited location. We thereforereverse the judge and affirm the Secretary’s citation item.FactsThe facts are essentially undisputed. PriceChopper 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 includemaintenance of OSHA injury and illness logs. The clerk maintains separate OSHA 200 logsfor each of Price Chopper’s stores. Price Chopper’s procedure has been for managers of theindividual stores to report accidents and illnesses to the compliance clerk, whoimmediately enters recordable injuries and illnesses on the appropriate OSHA log. PriceChopper has posted a notice in each store advising employees that a copy of the OSHA logis available by contacting its government compliance clerk, whose telephone number isincluded in the notice. Upon request from any employee for a log, a copy of the log forthe appropriate store is either mailed that day to the employee’s home or included in thenext truck shipment to the employee’s store. Such shipments are received in the storewithin 48 hours of receipt of the request for the log.The Citation Item at IssueThe Secretary issued an other-than-seriouscitation 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 occupationalinjuries 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 inSchenectady, New York, at the headquarters complex of Golub Corp., Price Chopper’s parentcompany.Judge’s Decision and OrderThe judge vacated the citation item. He concludedthat:Respondent’s maintenance of the OSHA log at itscentral administrative office coupled with the posting of notices as to how to obtain theinformation and the procedure of immediate mailing of copies of the log to requestingemployees complies with the requirements of the cited regulation.The judge explained that the standard requires acopy of the OSHA 200 log to be \”available\” at each of the employer’sestablishments, 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 concludedthat if the cited regulation was meant to require physical presence of the log on thepremises, it would have specified that.Although the judge held that supplementalinterpretative material need not be considered where, as here, the meaning of a regulationis plain on its face, he did consider and reject an argument by the Secretary that a 1986publication issued by the Bureau of Labor Statistics, Recordkeeping Guidelines forOccupational Injuries and Illnesses (\”1986 BLS\”), supports her argumentthat the cited standard requires the OSHA 200 logs to be physically present at each ofRespondent’s stores.DiscussionIn our view, the meaning of section 1904.2 isclear. An employer may comply with section 1904.2(a) by maintaining \”in eachestablishment\” a log and summary of all recordable injuries and illnesses for thatestablishment and by entering each recordable injury or illness on the log and summary nolater than six working days after receiving information that a recordable injury orillness 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 ofdata-processing equipment, or both,\” if (1) \”[t]here is available at the placewhere the log is maintained sufficient information to complete the log to a date within 6working days after receiving information that a recordable case has occurred,\” and(2) at each establishment \”there is available a copy of the log which reflectsseparately the injury and illness experience of that establishment complete and current toa date within 45 calendar days.\”We read \”available\” in both subsection(1) and subsection (2) to mean \”present or ready for immediate use.\” TheSecretary could have used even more specific language, but the provisions in the standardthat require information to be \”available at the place where the log ismaintained\” (subsection (b)(1)) and to be \”available at the place where the logis maintained\” (subsection (b)(1)) and to be \”available\” \”[a]t each ofthe employer’s establishments\” (subsection (b)(2)) are sufficiently plain to begenerally 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)(Employercomplied with section 1904.2(a) because it maintained logs \”at\” cited worksite).Price Chopper had a centralized recordkeepingsystem, but it concedes that it did not have a copy of the OSHA 200 log at its Lathamestablishment. There is no evidence that the information could be telecopied to the Lathamstore.[[3]] These facts establish that it failed to comply with the cited standard. PriceChopper argues that the procedures it utilized–posting notices informing employees thatthey were entitled to free access to the log and making confidential access to the logavailable through its government compliance clerk, rather than through managementpersonnel–promoted safety and health to a greater extent than mere strict compliance withthe cited standard. Price Chopper’s procedures do provide advantages to its employees thatare not strictly required, but they do not relieve Price Chopper of its responsibility tohave available at the cited establishment a copy of the OSHA 200 log current to within 45days.[[4]] Maintaining a copy of the log at the supermarket under the terms of section1904.2(b)(2) provides for quick access to it by the employees. Under Price Chopper’sprocedures, 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’sinterpretation of the word \”available\” to mean \”ready for immediateuse\” is reasonable under the circumstances, that interpretation is entitled todeference over the judge’s conflicting interpretation of \”available\” to mean\”accessible,\” under the dictates of Martin v. OSHRC (CF & ISteel), 111 S. Ct. 1171, 1178 (1991).We therefore reverse the decision of the judgegranting Price Chopper’s summary judgement motion, and we grant the Secretary’s motion forsummary judgment. Accordingly, the citation item alleging an other-than-serious violationof section 1904.2(b)(2) is affirmed with no penalty.Edwin G. Foulke, Jr., ChairmanDonald G. Wiseman, CommissionerVelma Montoya, CommissionerDated: February 21, 1992\u00a0SECRETARY OF LABOR, Complainant, v. PRICE CHOPPER SUPERMARKETS, A GOLUB CORPORATION COMPANY, Respondent.Docket No: 90-0552DECISION AND ORDERGRANTING RESPONDENT’S MOTION FOR SUMMARYJUDGEMENTThis cases arises under the Occupational Safety and Health Actof 1970, 29 U.S.C. ?? 651-678 (1970) (\”the Act\”).As a result of an inspection of a Price Chopper supermarket inLatham, New York, the Occupational Safety and Health Administration (\”OSHA\”)issued a citation to Respondent on January 8, 1990, alleging that it had committed threeother 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 thecitation. Items 1 and 3, which were not contested, evolved into final orders of theCommission pursuant to section 10(a) of the Act, 29 U.S.C.? 659(a).Complaint and answer were duly filed. During a prehearingtelephone conference the parties agreed that there were no genuine issues of materialfact. Based upon that representation, the Administrative Law Judge directed that theparties simultaneously submit cross motions for summary judgement which have been filedand considered.[[1]]Because Respondent’s procedures for maintaining the OSHA Form200, Log and Summary of Occupational Injuries and Illnesses (\”OSHA log\”),resulted in a copy thereof being \”available\” at each of Respondent’sestablishments, Respondent did not fail to comply with the standard under which it wascited.Respondent, under item 2 of the citation, was charged withfailure to comply with the standard at 29 C.F.R. ? 1904.2(b)(2) which provides, inrelevant part:(b) Any employer may maintain the log of occupational injuriesand illnesses at a place other than the establishment… under the followingcircumstances:(2) At each of the employer’s establishments, there isavailable a copy of the log which reflects separately the injury and illness experience ofthat establishment complete and current to a date within 45 calendar days.It is alleged by the Secretary that Respondent’s failure tokeep a copy of the log physically at the inspected location (thus at each individualsupermarket) constitutes a violation of the cited standard. There is no allegation thatthe log as kept at Respondent’s main office was incorrect in any way.The undisputed facts are as follows. Respondent operates achain of grocery stores at 76 locations in an area surrounding Albany, New York. Itmaintains a central office at which it employs a Government Compliance Clerk whose dutiesinclude the maintenance of the OSHA logs. A separate OSHA log is maintained by her foreach of Respondent’s stores. Reports of accidents and illnesses at each location are madeto her by store managers.She immediately enters recordable injuries in the appropriate OSHA log. A notice is postedin each store advising employees that a copy of the OSHA log is available by contactingthe Government Compliance Clerk whose phone number is included in the notice. Upon requestfrom any employee for the log, at the employees option, a copy of the log for theappropriate store is either mailed that day to the employee’s home or included in the nexttruck shipment from the warehouse to his or her store. Such shipments are received at thestore 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 reflectingseparately the injury and illness experience of each establishment be available ateach 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 beencharged with failure to maintain a separate log for each of its establishments, nor is itclaimed that Respondent is required to make available at each store the logs for all otherstores.The issue in this case is solely whether a copy of the OSHA logfor each store must be physically on the premises of that store or whether maintainingindividual OSHA logs for all stores at its central office and mailing a copy of theappropriate log directly to a requesting employee’s home (or delivery within 48 hours tothe employee’s store) constitutes making the log \”available\” at theestablishment as that term is used in the regulation. It does.The Secretary’s invitation to \”defer\” to theDepartment’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 thelog’s physical presence on the premises the regulation surely could have so stated.Supplemental interpretative material need not be considered where the meaning of theregulation is plain on its face.In this regard, reliance by the Secretary on the few pages ofthe 1986 Bureau of Labor Statistics Guidelines for occupational Injuries and Illnesses(\”1986 BLS\”) submitted by counsel would be misleading. The Secretary saw it tosubmit a photocopy of only the cover and 8 pages of the booklet which, in its entirety, is84 pages in length. More importantly, included with the submission was only one of thefive 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 ExhibitALJ-1.[[2]]A portion of the booklet not submitted by counsel contains thefollowing less than clear explanation of the requirements of standard:B-1.Q. I manage a grocery store that is part of a supermarketchain. May we keep all the OSHA records for our employees at our company’s centraladministrative office ?A. No. The OSHA records for these employees should bemaintained at the work location to satisfy the requirements of the regulations ….However, even though the summary and supplementary records must be kept at theestablishment, 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, inpertinent part;C-1. Q. Can we maintain the logs for our different facilitiesin 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 thelog updated to within 45 calendar days must be present at all times in theestablishment.\” Id. The provisions, read together, mean either that the log, updatedwithin 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 theSecretary urges, the \”exception\” would mean precisely the same thing as theregulation, effectively eliminating the exception.I find that Respondent’s maintenance of the OSHA log at itscentral administrative office coupled with the posting of notices as to how to obtain theinformation and the procedure of immediate mailing of copies of the log to requestingemployees complies with the requirements of the cited regulation.Accordingly, Respondent’s motion for summary judgement isGRANTED.It is ORDERED that, item 2 of the citation issued to Respondenton January 8, 1990, is VACATED.Michael H. SchoenfeldJudge, OSHRCDated: December 16, 1990 Washington, D.C.FOOTNOTES: [[1]] Section 1904.2 provides:? 1904.2 Log and summary of occupational injuries andillness.(a) Each employer shall, except as provided in paragraph (b) ofthis section, (1) maintain in each establishment a log and summary of all recordableoccupational injuries and illnesses for that establishment; and (2) enter each recordableinjury and illness on the log and summary as early as practicable but no later than 6working 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 andcomprehensible to a person not familiar with it shall be used. The log and summary shallbe completed in the detail provided in the form and instructions on form OSHA No. 200.(b) Any employer may maintain the log of occupational injuriesand illnesses at a place other than the establishment or by means of data-processingequipment, or both, under the following circumstances:(1) There is available at the place where the log is maintainedsufficient information to complete the log to a date within 6 working days after receivinginformation that a recordable case has occurred, as required by paragraph (a) of thissection.(2) At each of the employer’s establishments, there isavailable a copy of the log which reflects separately the injury and illness experience ofthat establishment complete and current to a date within 45 calendar days.[[2]] Because we find that the meaning of the cited regulationis plain on its face, we do not consider whether the 1986 BLS publication supports theSecretary’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 withsection 1904.2(b)(2) by facsimile transmission (FAX) of the OSHA 200 log from its centraloffice to its individual stores. Although the facts in this case do not indicate thatPrice Chopper had this capability, we note that section 1904.2(b) recognizes\”date-processing equipment\” as a means of maintaining these records. In ourview, the implementation and use of a reliable routine for the use of FAX transmissionsunder the circumstances here could achieve the same result as employer compliance withsection 1904.2(b)(2). In support of this approach, we observe that OSHA Instruction CPL2-2.38C (Oct. 22, 1990) allows for compliance with 29 C.F.R. ? 1926.59(g)(8)–whichrequires employers in the construction industry to maintain material safety data sheets\”readily accessible during each work shift to employees when they are in their workarea(s)\”– by means of \”computers with printers, microfiche machines, and\/ortelefax machines…\”[[4]] Respondent relies on Adler & Neilson Co., 5BNA OSHC 1130, 1977-78 CCH OSHD ? 21,609 (No. 13380, 1977), but the case weakens itsposition. There, the Commission held that maintenance of the annual summary ofoccupational injuries and illnesses at the employer’s central office–but not at eachestablishment–constitutes compliance with 29 C.F.R. ? 1904.5(a). The Commissionexplained, however, that the regulation \”requires only that the summary be complied foreach establishment and not that it be maintained at each establishment\”(emphasis in original). Id. at 1132, 1977-78 CCH OSHD at p. 25,940. Theregulation cited in this case, section 1904.2(b)(2), requires that the OSHA log beavailable \”[a]t each of the employer’s establishments…..\”[[1]] Rule 56 of the Federal Rules of Civil Procedure governingmotions for summary judgment is applicable in proceedings before the Commission pursuantto Commission Rule 2, 29 C.F.R. ? 2200.2, Rules of Procedure of the Occupational Safetyand 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.”