Cite as: 512 U. S. 267 (1994)
Opinion of the Court
The employer in Transportation Management argued that the NLRB's approach violated § 7(c)'s burden of proof provision, which the employer read as imposing the burden of persuasion on the employee. In a footnote, we summarily rejected this argument, concluding that "[§ 7(c)] . . . determines only the burden of going forward, not the burden of persuasion. Environmental Defense Fund, Inc. v. EPA, [548 F. 2d 998, 1004, 1013-1015 (CADC 1976)]." Id., at 404, n. 7. In light of our discussion in Part II-A above, we do not think our cursory conclusion in the Transportation Management footnote withstands scrutiny. The central issue in Transportation Management was whether the NLRB's burden shifting approach was consistent with the NLRA. The parties and the amici in Transportation Management treated the APA argument as an afterthought, devoting only one or two sentences to the question. None of the briefs in the case attempted to explain the ordinary meaning of the term. Transportation Management's cursory answer to an ancillary and largely unbriefed question does not warrant the same level of deference we typically give our precedents.
Moreover, Transportation Management reached its conclusion without referring to Steadman v. SEC, 450 U. S. 91 (1981), our principal decision interpreting the meaning of § 7(c). In Steadman we considered what standard of proof § 7(c) required, and we held that the proponent of a rule or order under § 7(c) had to meet its burden by a preponderance of the evidence, not by clear and convincing evidence. Though we did not explicitly state that § 7(c) imposes the burden of persuasion on the party seeking the rule or order, our reasoning strongly implied that this must be so. We assumed that burden of proof meant burden of persuasion when we said that we had to decide "the degree of proof which must be adduced by the proponent of a rule or order to carry its burden of persuasion in an administrative proceeding." Id., at 95 (emphasis added). More important, our holding that the party with the burden of proof must prove
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