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B & B INSULATION, INC. v. O. S. H. R. C.

No. 77-2211.

583 F.2d 1364 (1978)

B & B INSULATION, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Secretary of Labor, Respondents.

United States Court of Appeals, Fifth Circuit.

November 16, 1978.

Attorney(s) appearing for the Case

P. Allan Port, Houston, Tex., for petitioner.

Carin A. Clauss, Sol. of Labor, U. S. Dept. of Labor, Benjamin W. Mintz, Assoc. Sol. for OSHC, Allen H. Feldman, Asst. Counsel for Appellate Litigation, Nancy L. Southard, Atty., Ray H. Darling, Jr., Executive Secretary, OSHRC, Thomas L. Holzman, Michael Levin, Counsel for Appellate Litigation, U. S. Dept. of Labor, Washington, D. C., for respondents.

Before RONEY, RUBIN and VANCE, Circuit Judges.

RONEY, Circuit Judge:

This Occupational Safety and Health Act case raises the question of whether an employer can be held in violation of a general federal admonition [29 C.F.R. § 1926.28(a)] to require the "wearing of personal protective equipment" where there is "an exposure to hazardous conditions" where his conduct is representative of that of employers in his industry under similar circumstances. In holding that the employer cannot be so held, we sustain...

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