Power Plant Division, Brown & Root, Inc. v. Occupational Safety and Health Review Commission, and Raymond J. Donovan, Secretary of Labor

(Opinion October 26, 1981, 5 Cir., 1981, 659 F.2d 1291)

Before GODBOLD, Chief Judge, TUT-TLE and HILL, Circuit Judges: GODBOLD, Chief Judge:

In this case the Occupational Safety and Health Review Commission (OSHRC or Commission) held that Brown & Root had failed to provide to its employees personal protective equipment required by 29 C.F.R. § 1926.28(a). Before this court Brown & Root contended for the first time that industry practices are determinative of an employer’s duty under § 1926.28(a). We held that because Brown & Root had not presented this argument to the Commission it was barred by…