712
Opinion of the Court
we therefore defer to it. NLRB v. Transportation Management Corp., 462 U. S. 393, 402-403 (1983).
Applying its rule to this case, the Board placed on respondent the duty to prove the supervisory status of its nurses both in the § 9(c) representation proceeding, where respondent sought to exclude the nurses from the bargaining unit prior to the election, and in the unfair labor practice hearing, where respondent defended against the § 8(a)(5) refusal-to-bargain charge. Respondent challenges the application of the rule to the latter proceeding where, it correctly observes and the Board does not dispute, "the General Counsel carries the burden of proving the elements of an unfair labor practice," id., at 401, which means that it bears the burden of persuasion as well as of production, see Administrative Procedure Act, 5 U. S. C. § 556(d); Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 276-278 (1994) (rejecting statement to contrary in NLRB v. Transportation Management Corp., supra, at 404, n. 7). Supervisory status, however, is not an element of the Board's claim in this setting. The Board must prove that the employer refused to bargain with the representative of a unit of "employees," § 8(a)(5), 29 U. S. C. § 158(a)(5), that was properly certified; the unit was not properly certified (as the respondent contends) only if the respondent successfully demonstrated, at the certification stage, that some employees in the unit were also supervisors. In the unfair labor practice proceeding, therefore, the burden remains on the employer to establish the excepted status of these nurses. Insofar as the Court of Appeals held otherwise, it erred. It remains to consider whether the court's other holding that is challenged here suffices to sustain its judgment.
III
The text of § 2(11) of the Act that we quoted above, 29 U. S. C. § 152(11), sets forth a three-part test for deter-
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