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BAROID DIVISION v. OCC. SAF. & HEALTH REV. COM'N

No. 79-1775.

660 F.2d 439 (1981)

BAROID DIVISION OF NL INDUSTRIES, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray Marshall, Secretary of Labor, Respondent.

United States Court of Appeals, Tenth Circuit.

Decided September 21, 1981.

Attorney(s) appearing for the Case

Stephen F. Fink, Dallas, Tex. (Stephen S. Livingston with him on the briefs) of Thompson & Knight, Dallas, Tex., for petitioner.

John R. Bradley, Atty., Washington, D. C. (Carin A. Clauss, Sol. of Labor; Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health; Allen H. Feldman, Counsel for Appellate Litigation; and John A. Bryson, U.S. Dept. of Labor, Washington, D. C., Acting Asst. Counsel for Appellate Litigation; James E. White, Regional Sol., Dallas, Tex., of counsel, with him on the brief), for respondent.

Before McWILLIAMS and McKAY, Circuit Judges, and WEST, District Judge.

McKAY, Circuit Judge.

This is an appeal from a decision of the Occupational Safety and Review Commission which vacated the decision of an administrative law judge and affirmed the Secretary of Labor's citation of petitioner based on petitioner's violation of the general duty clause of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 654(a)(1).1 The Secretary characterized

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