dissenting:
Although the question is close, I am persuaded that there is no “order of the Commission” for us to review on the back pay issue. I therefore cannot join in the majority’s quite reasonable disposition of this appeal.
Both commissioners agreed that medically removed employees are entitled to back pay for periods when they fail to receive the full “earnings” required by the MRP provision of the lead standard. The commissioners even agreed on the amount of earnings due the employees: “employees removed under the medical removal protection standard are entitled to ... contractu*300al [and] voluntary overtime pay, paid lunch time [as long as it does not increase the employee’s compensation, and] other pay differentials.” St. Joe, 1989 OSAHRC LEXIS 49, *23. But the Commission did not order back pay because Chairman Buckley concluded that the Commission lacked authority to issue such an order.
An employer who contests a citation issued by the Secretary presents his case to an ALJ. The AU’s report becomes the final order of the Commission after thirty days, unless a commissioner directs review of the report. Once a commissioner does so, 29 U.S.C. § 661(f) “sets the requirements for taking official action on the matter.” Shaw Constr., Inc. v. Occupational Safety & Health Review Comm., 534 F.2d 1183, 1185-86 n. 5 (5th Cir.1976). That section provides: “For the purpose of carrying its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.”
In this case, the two Commissioners, sitting as a quorum, agreed on every issue except on the Commission’s authority to order back pay. In this Circuit, where the Commission’s decision to affirm the AU is supported by only one vote, such a decision “does not comply with [§ 661(f) ] and cannot stand.” See Shaw Constr., 534 F.2d at 1185—86.1 It seems to follow, then, that an order to vacate or reverse the ALJ that is supported by only one vote cannot stand either.
The Commission characterizes its order as a Commission order because “neither member would adopt the back pay order issued by the judge.” Chairman Buckley thought that the Commission lacked authority to issue such an order and Commissioner Arey thought that the AU’s order should have included back pay for voluntary overtime, not merely for scheduled overtime. Thus, both commissioners voted against affirming the ALJ’s back pay order; but they could not agree on whether they should issue their own. The Commission acknowledges that it is “divided on the propriety of a ‘back pay’ order, and therefore cannot issue such an order.”
I am persuaded that the Commission does not issue a definitive, appealable order by issuing a list of things it will not do. The Commission has not decided by at least two votes whether an award of back pay in this case is appropriate. Because this non-decision is on back pay, I believe that it does not qualify as an order of the Commission. As it is not properly before us, I would remand this issue to the Commission for definitive disposition. See Shaw Constr., 534 F.2d at 1186.
. The Circuits are split whether decisions of a divided Commission should be reviewed. See Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3rd Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980) and George Hyman Constr. Co. v. Occupational Safety & Health Review Comm., 582 F.2d 834 (4th Cir. 1978), allowing review of divided decisions. See Willamette Iron & Steel Co. v. Secretary of Labor, 604 F.2d 1177 (9th Cir.1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1980); Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465 (9th Cir.1978), finding no jurisdiction over divided decisions.