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Opinion of the Court
v. University of Chicago, 441 U. S. 677, 696-698 (1979). These principles lead us to conclude that the drafters of the APA used the term "burden of proof" to mean the burden of persuasion. As we have explained, though the term had once been ambiguous, that ambiguity had largely been eliminated by the early 20th century. After Hill, courts and commentators almost unanimously agreed that the definition was settled. And Congress indicated that it shared this settled understanding, when in the Communications Act of 1934 it explicitly distinguished between the burden of proof and the burden of production. 47 U. S. C. §§ 309(e) and 312(d) (a party has both the "burden of proceeding with the introduction of evidence and the burden of proof"). Accordingly, we conclude that as of 1946 the ordinary meaning of burden of proof was burden of persuasion, and we understand the APA's unadorned reference to "burden of proof" to refer to the burden of persuasion.
B
We recognize that we have previously asserted the contrary conclusion as to the meaning of burden of proof in § 7(c) of the APA. In NLRB v. Transportation Management Corp., 462 U. S. 393 (1983), we reviewed the National Labor Relations Board's (NLRB's) conclusion that the employer had discharged the employee because of the employee's protected union activity. In such cases the NLRB employed a burden shifting formula typical in dual motive cases: The employee had the burden of persuading the NLRB that antiunion animus contributed to the employer's firing decision; the burden then shifted to the employer to establish as an affirmative defense that it would have fired the employee for permissible reasons even if the employee had not been involved in union activity. Id., at 401-402. The employer claimed that the NLRB's burden shifting formula was inconsistent with the National Labor Relations Act (NLRA), but we upheld it as a reasonable construction of the NLRA. Id., at 402-403.
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