288
Souter, J., dissenting
Transportation Management Corp., 462 U. S. 393 (1983), this Court considered the phrase "burden of proof" as used in that section and rejected the position the Court now takes. In Transportation Management, the Court upheld the rule of the National Labor Relations Board (Board), that its General Counsel has the burden of persuading the Board that antiunion animus contributed to an employer's decision to fire the employee, and that the burden of persuasion then shifts to the employer to prove that the employee would have been fired even without involvement in protected union activities. Confronting the employer's argument that § 7(c) barred the Board from ever shifting the burden of persuasion to the employer, the Court rejected it, on the ground that § 7(c) "determines only the burden of going forward, not the burden of persuasion." Id., at 404, n. 7 (citing Environmental Defense Fund, Inc. v. EPA, 548 F. 2d 998, 1004, 1013- 1015 (CADC 1976) (Leventhal, J.)).
Today's abandonment of Transportation Management's holding is not only a mistake, but one that puts the Court at odds with that fundamental principle of precedent that "[c]onsiderations of stare decisis have special force in the area of statutory interpretation, for . . . Congress remains free to alter what we have done." Patterson v. McLean Credit Union, 491 U. S. 164, 172-173 (1989); accord, Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409, 424 (1986); Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977).4 Even on the assumption that the conclusion reached in Transportation Management was debatable at the time the case was decided, it was undoubtedly a reasonable construction of a phrase that (as shown above) was ambiguous
4 I note in this regard that none of the parties argued for overruling Transportation Management; only amicus American Insurance Association did so; and the courts below did not pass on the question. Rather, respondents argue that Transportation Management does not bar the conclusion that a different sentence of § 7(c) places the burden of persuasion on the proponent of an order.
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