Price Chopper Supermarkets, A Golub Corporation Company

Plain-English summary

Price Chopper kept separate OSHA injury and illness logs for its 76 supermarkets at a central office. Employees could request a store's log by telephone and receive it at home by mail or at the store by truck delivery within about 48 hours. The Commission held that this procedure did not satisfy the rule requiring a current copy to be available at each establishment. It interpreted "available" to mean present or ready for immediate use, so employees could obtain quick access without waiting up to two days. The Commission reversed summary judgment for Price Chopper and affirmed the other-than-serious citation with no penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.2(b)(2).
• Outcome: Other-than-serious recordkeeping citation affirmed with no penalty.
• Key point: Centralized OSHA log maintenance does not eliminate the requirement to keep a current copy immediately available at each establishment.

Full text (OSHRC public release)

Docket No. 90-0552

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.