“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]] requiresa supermarket chain to have an OSHA 200 illness and injury logphysically present at each of its stores or whether the standard permitsthe chain to maintain its OSHA 200 logs at a central administrativelocation where the pertinent log may be furnished to the employeerequesting it by mailing a copy to the employee’s home or by sending itin a delivery truck to the store in about 48 hours. Administrative LawJudge Michael H. Schoenfeld held that Price Chopper complied with thestandard because it maintained a log at its central office that could bemade available to the other stores. The judge granted Price Chopper’smotion for summary judgement and vacated the pertinent item in thecitation issued by the Secretary of Labor (\”Secretary\”). We find thatPrice Chopper is required to maintain a log at the cited location. Wetherefore reverse the judge and affirm the Secretary’s citation item.\/Facts\/The facts are essentially undisputed. Price Chopper operates a chain ofgrocery stores at 76 locations in the Albany, New York area. At acentral office, it employs a government compliance clerk whose dutiesinclude maintenance of OSHA injury and illness logs. The clerk maintainsseparate OSHA 200 logs for each of Price Chopper’s stores. PriceChopper’s procedure has been for managers of the individual stores toreport accidents and illnesses to the compliance clerk, who immediatelyenters recordable injuries and illnesses on the appropriate OSHA log.Price Chopper has posted a notice in each store advising employees thata copy of the OSHA log is available by contacting its governmentcompliance clerk, whose telephone number is included in the notice. Uponrequest from any employee for a log, a copy of the log for theappropriate store is either mailed that day to the employee’s home orincluded in the next truck shipment to the employee’s store. Suchshipments are received in the store within 48 hours of receipt of therequest for the log.\/The Citation Item at Issue\/The Secretary issued an other-than-serious citation to Price Chopperalleging that it failed to comply with section 1904.2(b)(2) because itdid not maintain a copy of the OSHA 200 log and summary of occupationalinjuries and illnesses–current to within 45 calendar days–at itsLatham, New York store. The Secretary proposed no penalty. The citationnoted that logs were maintained in Schenectady, New York, at theheadquarters 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 administrativeoffice coupled with the posting of notices as to how to obtain theinformation and the procedure of immediate mailing of copies of the logto requesting employees complies with the requirements of the citedregulation.The judge explained that the standard requires a copy of the OSHA 200log to be \”available\” at each of the employer’s establishments, and theplain and usual meaning of \”available\” includes both \”present or readyfor immediate use,\” as well as \”accessible, obtainable,\” according toWebster’s New Collegiate Dictionary. The judge concluded that if thecited regulation was meant to require physical presence of the log onthe premises, it would have specified that.Although the judge held that supplemental interpretative material neednot be considered where, as here, the meaning of a regulation is plainon its face, he did consider and reject an argument by the Secretarythat 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 theOSHA 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 maycomply with section 1904.2(a) by maintaining \”in each establishment\” alog and summary of all recordable injuries and illnesses for thatestablishment and by entering each recordable injury or illness on thelog and summary no later than six working days after receivinginformation that a recordable injury or illness has occurred.Alternatively, an employer is permitted by section 1904.2(b)[[2]], tomaintain the log \”at a place other than the establishment or by means ofdata-processing equipment, or both,\” if (1) \”[t]here is available at theplace where the log is maintained sufficient information to complete thelog to a date within 6 working days after receiving information that arecordable case has occurred,\” and (2) at each establishment \”there isavailable a copy of the log which reflects separately the injury andillness experience of that establishment complete and current to a datewithin 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 evenmore specific language, but the provisions in the standard that requireinformation to be \”available at the place where the log is maintained\”(subsection (b)(1)) and to be \”available at the place where the log ismaintained\” (subsection (b)(1)) and to be \”available\” \”[a]t each of theemployer’s establishments\” (subsection (b)(2)) are sufficiently plain tobe generally understood. \/See Savina Home Industries, Inc.,\/ 4 BNA OSHC1956, 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 maintainedlogs \”at\” cited worksite).Price Chopper had a centralized recordkeeping system, but it concedesthat it did not have a copy of the OSHA 200 log at its Lathamestablishment. There is no evidence that the information could betelecopied to the Latham store.[[3]] These facts establish that itfailed to comply with the cited standard. Price Chopper argues that theprocedures it utilized–posting notices informing employees that theywere entitled to free access to the log and making confidential accessto the log available through its government compliance clerk, ratherthan through management personnel–promoted safety and health to agreater extent than mere strict compliance with the cited standard.Price Chopper’s procedures do provide advantages to its employees thatare not strictly required, but they do not relieve Price Chopper of itsresponsibility to have available at the cited establishment a copy ofthe OSHA 200 log current to within 45 days.[[4]] Maintaining a copy ofthe 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’sprocedures, employees could have to wait up to two days before gainingaccess 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 thecircumstances, that interpretation is entitled to deference over thejudge’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’ssummary judgement motion, and we grant the Secretary’s motion forsummary judgment. Accordingly, the citation item alleging another-than-serious violation of section 1904.2(b)(2) is affirmed with nopenalty.Edwin G. Foulke, Jr.,ChairmanDonald G. Wiseman,CommissionerVelma Montoya,CommissionerDated: 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 hadcommitted three other than serious violations of the Act. No civilpenalties 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 finalorders of the Commission pursuant to section 10(a) of the Act, 29U.S.C.? 659(a).Complaint and answer were duly filed. During a prehearing telephoneconference the parties agreed that there were no genuine issues ofmaterial fact. Based upon that representation, the Administrative LawJudge directed that the parties simultaneously submit cross motions forsummary judgement which have been filed and considered.[[1]]Because Respondent’s procedures for maintaining the OSHA Form 200, Logand 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 standardunder which it was cited.Respondent, under item 2 of the citation, was charged with failure tocomply 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 injuries andillnesses at a place other than the establishment… under the followingcircumstances:(2) At each of the employer’s establishments, there is available a copyof the log which reflects separately the injury and illness experienceof that establishment complete and current to a date within 45 calendardays.It is alleged by the Secretary that Respondent’s failure to keep a copyof the log physically at the inspected location (thus at each individualsupermarket) constitutes a violation of the cited standard. There is noallegation that the log as kept at Respondent’s main office wasincorrect in any way.The undisputed facts are as follows. Respondent operates a chain ofgrocery stores at 76 locations in an area surrounding Albany, New York.It maintains a central office at which it employs a GovernmentCompliance Clerk whose duties include the maintenance of the OSHA logs.A separate OSHA log is maintained by her for each of Respondent’sstores. Reports of accidents and illnesses at each location are made toher 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 theOSHA log is available by contacting the Government Compliance Clerkwhose phone number is included in the notice. Upon request from anyemployee 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 orincluded in the next truck shipment from the warehouse to his or herstore. Such shipments are received at the store within 48 hours of thereceipt of the request for the log.The Secretary argues that the regulation;specifically requires that a copy of the log reflecting separately theinjury 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 onlyto confuse the issue in this case. Respondent has not been charged withfailure to maintain a separate log for each of its establishments, noris it claimed that Respondent is required to make available at eachstore the logs for all other stores.The issue in this case is solely whether a copy of the OSHA log for eachstore must be physically on the premises of that store or whethermaintaining individual OSHA logs for all stores at its central officeand mailing a copy of the appropriate log directly to a requestingemployee’s home (or delivery within 48 hours to the employee’s store)constitutes making the log \”available\” at the establishment as that termis 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 \”presentor 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’sphysical presence on the premises the regulation surely could have sostated. Supplemental interpretative material need not be consideredwhere the meaning of the regulation is plain on its face.In this regard, reliance by the Secretary on the few pages of the 1986Bureau of Labor Statistics Guidelines for occupational Injuries andIllnesses (\”1986 BLS\”) submitted by counsel would be misleading. TheSecretary saw it to submit a photocopy of only the cover and 8 pages ofthe booklet which, in its entirety, is 84 pages in length. Moreimportantly, included with the submission was only one of the five pagesmaking up the section of the booklet entitled \”Chapter III: Location,Retention, and Maintenance of Records.\” In order to ensure fairness toRespondent, the Administrative Law Judge, sua sponte,enters intoevidence the whole booklet as Exhibit ALJ-1.[[2]]A portion of the booklet not submitted by counsel contains the followingless than clear explanation of the requirements of standard:B-1.Q. I manage a grocery store that is part of a supermarket chain. Maywe keep all the OSHA records for our employees at our company’s centraladministrative office ?A. No. The OSHA records for these employees should be maintained at thework location to satisfy the requirements of the regulations ….However, even though the summary and supplementary records must be keptat the establishment, see the next section for the location exceptionfor 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 onecentral administrative office rather than in each individual establishment ?A. Yes. For centralized recordkeeping, the log, OSHA No. 200, may bemaintained in some place other than the establishment, such as thecentral office. If that is done, the requirements listed above must befollowed….Id., at p.22.Among the requirements to be followed is \”a copy of the log updated towithin 45 calendar days must be present at all times in theestablishment.\” Id. The provisions, read together, mean either that thelog, updated within 6 days of occurrences, can be kept at a centrallocation if copies of the logs, current within 45 days of occurrencesare 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 centraladministrative office coupled with the posting of notices as to how toobtain the information and the procedure of immediate mailing of copiesof the log to requesting employees complies with the requirements of thecited regulation.Accordingly, Respondent’s motion for summary judgement is GRANTED.It is ORDERED that, item 2 of the citation issued to Respondent onJanuary 8, 1990, is VACATED.Michael H. SchoenfeldJudge, OSHRCDated: December 16, 1990Washington, 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 thissection, (1) maintain in each establishment a log and summary of allrecordable occupational injuries and illnesses for that establishment;and (2) enter each recordable injury and illness on the log and summaryas early as practicable but no later than 6 working days after receivinginformation that a recordable injury or illness has occurred. For thispurpose form OSHA No. 200 or an equivalent which is as readable andcomprehensible to a person not familiar with it shall be used. The logand summary shall be completed in the detail provided in the form andinstructions on form OSHA No. 200.(b) Any employer may maintain the log of occupational injuries andillnesses at a place other than the establishment or by means ofdata-processing equipment, 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 workingdays after receiving information that a recordable case has occurred, asrequired by paragraph (a) of this section.(2) At each of the employer’s establishments, there is available a copyof the log which reflects separately the injury and illness experienceof that establishment complete and current to a date within 45 calendardays.[[2]] Because we find that the meaning of the cited regulation is plainon its face, we do not consider whether the 1986 BLS publicationsupports the Secretary’s interpretation of the cited standard. \/See Howev. Smith,\/ 452 U.S. 473, 483 (1981)(when terms of statue areunambiguous, inquiry goes no further).[[3]] Price Chopper raises the possibility of compliance with section1904.2(b)(2) by facsimile transmission (FAX) of the OSHA 200 log fromits central office to its individual stores. Although the facts in thiscase do not indicate that Price Chopper had this capability, we notethat section 1904.2(b) recognizes \”date-processing equipment\” as a meansof maintaining these records. In our view, the implementation and use ofa reliable routine for the use of FAX transmissions under thecircumstances here could achieve the same result as employer compliancewith section 1904.2(b)(2). In support of this approach, we observe thatOSHA Instruction CPL 2-2.38C (Oct. 22, 1990) allows for compliance with29 C.F.R. ? 1926.59(g)(8)–which requires employers in the constructionindustry to maintain material safety data sheets \”readily accessibleduring each work shift to employees when they are in their workarea(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 itsposition. There, the Commission held that maintenance of the annualsummary of occupational injuries and illnesses at the employer’s centraloffice–but not at each establishment–constitutes compliance with 29C.F.R. ? 1904.5(a). The Commission explained, however, that theregulation \”requires only that the summary be complied \/for\/ eachestablishment 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 thatthe OSHA log be available \”[a]t each of the employer’s establishments…..\”[[1]] Rule 56 of the Federal Rules of Civil Procedure governing motionsfor summary judgment is applicable in proceedings before the Commissionpursuant to Commission Rule 2, 29 C.F.R. ? 2200.2, Rules of Procedure ofthe 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.”