dissenting.
Neither the ALJ nor the Board ever made a finding by a preponderance of the evidence that the employer laid off a number of employees because of their non-membership in Local 70. For that reason I would deny enforcement of the Board’s order and remand the ease to the Board for further proceedings.
In Transportation Management, the Court held that in a mixed motive case the Board may require the employer to prove that, even though protected conduct motivated a discharge, the employee would have been discharged in any event because of unprotected conduct. With the exception of the Canadian workers, however, this is not a mixed motive case. With respect to the Canadians, T & B was saying they would have been laid off in any event because their visas expired. The ALJ and the Board accepted that affirmative defense and that issue is not a part of this enforcement proceeding. With respect to the remaining workers, the employer is simply denying they were laid off because they were not members of Local 70. It is not saying even if they were laid off because *303they were not members of the Local, they would have been laid off anyway.
The Supreme Court recognized in Transportation Management that the General Counsel must prove by a preponderance of the evidence that protected conduct (here non-membership in Local 70) was a motivating factor in the discharge (here the layoff preference given Local 70 members). In four separate statements it reaffirmed that the General Counsel had to initially establish by a preponderance of the evidence that protected conduct motivated the discharge.
In the recital of the proceedings below, the Court specifically stated that:
The administrative law judge (ALJ) determined by a preponderance of the evidence that Patterson clearly had an anti-union animus and that Santillo’s discharge was motivated by a desire to discourage union activities.
103 S.Ct. 2469, 2471 (1983).
Again, it states:
This construction of the Act — that to establish an unfair labor practice the General Counsel need show by a preponderance of the evidence only that a discharge is in any way motivated by a desire to frustrate union activity — was plainly rational and acceptable. The Board has adhered to that construction of the Act since that time.
Id., 103 S.Ct. at 2473.
Should there be any question but that the finding of a violation must be by a prepon-' derance of the evidence it is removed by the Court’s statement that:'
The Court of Appeals was quite correct, and the Board does not disagree, that throughout the proceedings, the General Counsel carries the burden of proving the elements of an unfair labor practice. Section 10(c) of the Act, 29 U.S.C. § 160(c), expressly directs that violations may be adjudicated only “upon the preponderance of the testimony” taken by the Board.
Id., 103 S.Ct. at 2474.
.Finally, in footnote 5, the Court stated:
The Board has not purported to shift the burden of persuasion on the question of whether the employer fired Santillo at least in part because he engaged in protected activities. The General Counsel satisfied his burden in this respect and no one disputes it.
Id., 103 S.Ct. at 2473 n. 5.
Here the ALJ failed to make any finding of pro-Local 70 animus by a preponderance of the evidence. Instead he found that the General Counsel had established a “prima facie showing that the motivating factor” in the layoffs was the non-membership of the employees in Local 70. (App. 16) The ALJ expressly defined what he meant by “prima facie showing”:
Further, where motivation for discharge is at issue the General Counsel must make a prima facie showing sufficient to support the inference that protected activity by employees was a motivating factor in an employer’s decision to discharge
(App. 14) Evidence “sufficient to support the inference” is something different from a preponderance of the evidence. The Board merely affirmed the holding of the Administrative Law Judge, so its opinion does not remedy the ALJ’s defective standard.
Without a finding by a preponderance of the evidence that a motivating factor in the layoffs of employees between January 18, 1980 and February 14, 1980 was non-membership in Local 70, the Board’s order is not entitled to enforcement. Accordingly, I respectfully dissent.