The opinion
SNEED, Circuit Judge,
concurring:
I concur in Judge Tang’s opinion. I write only to call attention to an interaction between the employer’s Wright Line burden and the substantial evidence standard to which we must adhere in reviewing the Board’s findings. An employer, who presents a fairly strong case that an employee was discharged for reasons unrelated to protected activity, but which ease fails to convince the Board that the showing amounts to a preponderance of the evidence, should not be sanguine about the Board’s result being overturned by a court. Inevitably, or almost inevitably, the evidence that established the employee’s prima facie case, plus a bit more, probably will constitute substantial evidence. The employer’s proof that will require a court to overturn a Board’s finding against it very likely must be stronger than the preponderance of the evidence burden that Wright Line imposes. To say either that we must affirm a Board’s finding against the employer when that finding rests on nothing but the employee’s prima facie case, or that we can reverse such a Board’s finding only if the employer’s proof is beyond a reasonable doubt, is to go too far. However, it is also clear that we are not entitled to reverse a Board’s finding merely because in our view the employer did show by a preponderance that the discharge was for reasons unrelated to protected activity.
In sum, we must abide by the Board’s result if it is supported by substantial evidence even though we are convinced it improperly applied Wright Line. See N.L.R.B. v. Nevis Industries, Inc., 647 F.2d 905 , 908 (9th Cir.1981). This places the Board in a very responsible position in cases involving the Wright Line burden. It must apply Wright Line scrupulously. Not to do so ordinarily will increase the weight of the *473 employer’s burden and substantially immunize this increase from appellate review.