NLRB v. Grand Canyon Mining

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v. No. 96-1990

GRAND CANYON MINING COMPANY,

Respondent.

GRAND CANYON MINING COMPANY,

Petitioner,

v. No. 96-2089

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Application for Enforcement and Cross-Petition for

Review of an Order of the National Labor Relations Board.

(11-CA-15801, 11-CA-16059)

Argued: May 7, 1997

Decided: June 27, 1997

Before MURNAGHAN and MOTZ, Circuit Judges, and

STAMP, Chief United States District Judge for the

Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Order enforced by published opinion. Judge Murnaghan wrote the

opinion, in which Judge Motz and Chief Judge Stamp joined.

_________________________________________________________________

COUNSEL

ARGUED: Jeffrey Lawrence Horowitz, NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for Petitioner. Matthew

Woodruff Sawchak, SMITH, HELMS, MULLISS & MOORE,

L.L.P., Raleigh, North Carolina, for Respondent. ON BRIEF: Freder-

ick L. Feinstein, General Counsel, Linda Sher, Associate General

Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,

Howard E. Perlstein, Deputy Assistant General Counsel, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Petitioner.

George J. Oliver, SMITH, HELMS, MULLISS & MOORE, L.L.P.,

Raleigh, North Carolina, for Respondent.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

The National Labor Relations Board (the "Board") found that

Grand Canyon Mining Company ("Grand Canyon") violated sections

8(a)(1) and 8(a)(3) of the National Labor Relations Act (the "Act"),

29 U.S.C.A. § 158(a)(1), (3) (West 1973 & Supp. 1997), by making

several threats and coercive statements to its employees when they

attempted to unionize and by discharging and constructively discharg-

ing two of its employees in retaliation for their unionizing activities.

The Board has petitioned for enforcement of its order, and Grand

Canyon has cross-petitioned for review of the Board's order. For the

reasons stated below, we enforce the Board's order in full.

I.

Rapoca Energy Company owns the mine at issue in the instant

case, and it leased its coal mining rights to Sam Blankenship in Octo-

ber 1990. Blankenship then assigned his mining rights to Grand Can-

yon. Gary Horn owns and operates Grand Canyon. Horn employs

several people in supervisory positions. Bill Sawyers works as Grand

Canyon's superintendent, and he is responsible for running the mine.

Elmer McCoy, Jr. and Larry Addair work as the foremen of sections

one and two of the mine, respectively, and they are responsible for

2

overseeing the day-to-day operations of their sections. Doug Wright

no longer works for Grand Canyon, but at the time at issue in the

instant case, he worked as a supervisor in section two of the mine.

Tim Woods works as a miner, but he also occasionally works as a

short-time fill-in supervisor for Wright.

In July 1991, Grand Canyon began mining coal out of section one

of the mine. When Grand Canyon began mining section two in late

1991, problems soon developed. The coal seam in section two is

smaller and has a lower overall quality than the coal in section one,

and section two is not structurally sound. Those problems caused

Grand Canyon to shut down operations in section two periodically. In

June 1992, Grand Canyon closed section two for six months. In June

1993, it closed the section for two weeks. Each time, Grand Canyon

laid off employees during the shutdown.

Ron Casteel worked as a roof bolter for Grand Canyon. In Septem-

ber 1993, he decided to try and unionize the mine, and he began talk-

ing to his fellow employees. The employees held meetings regarding

possible unionization on October 31, 1993 and November 7, 1993. As

a result of those meetings, several employees signed cards that autho-

rized the United Mine Workers of America (the "UMWA") to repre-

sent them. Larry French, a roof bolter, attended both meetings and

signed an authorization card. On December 17, 1993, the UMWA

delivered a union election petition to Grand Canyon owner Gary

Horn.

Several Grand Canyon employees claim that various Grand Can-

yon supervisors made threats throughout November 1993 that Grand

Canyon would close the mine if the employees supported the union,

made threats that Grand Canyon would lay off any employee that sup-

ported the union, and gave the impression that Grand Canyon was

conducting surveillance of union activities. On November 16, 1993,

Grand Canyon transferred Casteel, the union organizer, from section

one to section two of the mine. Five days later, Grand Canyon shut

down section two and laid off most of its section two employees,

including Casteel (the "November 1993 layoff"). On February 22,

1994, supervisor Woods accused Larry French of being a union insti-

gator. Three days later, Grand Canyon transferred French from the

day shift in section one to the night shift. French protested because

3

he depended on his brother for transportation, and his brother worked

on the day shift at Grand Canyon. Nonetheless, Grand Canyon trans-

ferred French to the night shift, and French subsequently quit his job.

The UMWA filed two separate charges against Grand Canyon with

the Board. On July 21, 1994, the Board's General Counsel issued a

consolidated complaint. An administrative law judge ("ALJ") held

hearings on October 19 and 20, 1994 and issued a decision on April

17, 1995. The ALJ dismissed several of the claims that the General

Counsel had alleged. However, the ALJ found that Grand Canyon

violated sections 8(a)(1) and 8(a)(3) of the Act by making threats of

closure, by giving the impression of union surveillance, by stating that

it laid off two workers because of their union sympathies, by transfer-

ring and subsequently laying off Ron Casteel, and by constructively

discharging Larry French. The ALJ's recommended order requires

Grand Canyon to cease and desist from the unfair labor practices

found and from otherwise interfering with, restraining, or coercing

employees in the exercise of their rights to unionize. The order also

directs Grand Canyon to rescind the unlawful transfer and layoff of

Casteel and the unlawful constructive discharge of French. It further

directs Grand Canyon to offer Casteel and French full reinstatement

to their former positions, or to substantially similar positions if their

former jobs no longer exist, to make them whole for any losses result-

ing from the unlawful activity, and to expunge Casteel's and French's

records of all references to the transfer, layoff, and constructive dis-

charge. Finally, the order requires Grand Canyon to post an appropri-

ate notice regarding its foregoing responsibilities.

The Board affirmed the ALJ's findings and conclusions, and it

adopted the ALJ's order. The Board now applies for enforcement of

its order against Grand Canyon, and Grand Canyon cross-petitions for

review of that order.

II.

We must affirm the Board's factual findings as long as they are

supported by "substantial evidence on the record as a whole." Vance

v. NLRB, 71 F.3d 486, 489 (4th Cir. 1995). "Substantial evidence"

means:

4

"such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion." It is "more than a scin-

tilla but less than a preponderance." Although a reviewing

court accords "due deference" to the Board's factual find-

ings under the substantial evidence standard of review, the

court does not "mechanically accept[ ]" those findings.

Id. at 489-90 (alteration in original) (citations omitted). We "may not

`displace the Board's choice between two fairly conflicting views,

even though the court would justifiably have made a different choice

had the matter been before it de novo.'" NLRB v. Walton Mfg. Co.,

369 U.S. 404, 405 (1962) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)). See also NLRB v. Daniel Constr. Co., 731

F.2d 191, 193 (4th Cir. 1984) ("If the findings of the Board have sub-

stantial support in the record as a whole, our inquiry ends and its

order must be enforced even though we might have reached a differ-

ent result had we heard the evidence in the first instance."). We must

affirm the Board's application of the law to those facts as long as its

application is "reasonable and consistent with the [Act]." Vance, 71

F.3d at 490.

III.

Section 7 of the Act, 29 U.S.C.A. § 157 (West 1973), guarantees

employees "the right to self-organization, to form, join, or assist labor

organizations." Section 8(a)(1) of the Act, 29 U.S.C.A. § 158(a)(1)

(West 1973 & Supp. 1997), implements that guarantee and makes it

an unfair labor practice for an employer "to interfere with, restrain,

or coerce employees in the exercise of [their section 7] rights." To

establish a violation of section 8(a)(1), the Board's General Counsel

must establish that, under all of the circumstances, the employer's

conduct may reasonably tend to coerce or intimidate employees. See

Standard-Coosa-Thatcher Carpet Yarn Div., Inc. v. NLRB, 691 F.2d

1133, 1137 (4th Cir. 1982); NLRB v. P.B. & S. Chem. Co., 567 F.2d

1263, 1267 (4th Cir. 1977). Whether particular conduct is coercive is

a "question essentially for the specialized experience of the NLRB."

Daniel Constr. Co. v. NLRB, 341 F.2d 805, 811 (4th Cir. 1965).

A.

We have clearly held that an employer violates section 8(a)(1) if

it threatens to close its business if its employees support a union. See

5

NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 966 (4th Cir. 1985). In the

instant case, the Board found that supervisor Wright and foreman

Addair told various employees on at least two different occasions that

Grand Canyon would close the mine if the employees supported the

UMWA.

Substantial evidence supports the Board's finding that supervisor

Wright made such a statement. The unrebutted testimony at the

administrative hearing established that in mid-November 1993, super-

visor Wright told a group of employees that Grand Canyon would

close the mine if they supported the UMWA. Troy Salyers, a Grand

Canyon employee, testified to a conversation that he and his fellow

employees Mike Richardson and Eddie Fuller had with supervisor

Wright. Salyers testified that "somehow or another it come up about

the union and Doug [Wright] said that they'd just shut it down. He

said they'd just shut it down for a year and then open it back up." In

response to a question on direct examination regarding what Wright

specifically said about the union, Salyers replied that "Doug [Wright]

said something about they was going to work us out of a job or some-

thing like that." Grand Canyon did not call supervisor Wright to tes-

tify, nor did it offer any other evidence to refute Salyers's testimony.

Thus, the Board did not err in crediting Salyers's testimony and find-

ing that supervisor Wright did in fact make such a statement.

Substantial evidence also supports the Board's finding that foreman

Addair made a similar statement. Donis Cook, a Grand Canyon

employee, testified that foreman Addair told him that Blankenship

had said that Grand Canyon would close the mine if the employees

unionized and just reopen it later. Specifically, Cook testified that in

mid-November 1993, Addair said that "`Sam [Blankenship] will not

work under a union. He will shut it down for a couple of months and

then he will start right back up.'" Addair also testified, and he denied

that he made such a statement to Cook. The ALJ, however, credited

Cook over Addair because Cook's testimony convinced the ALJ that

Cook "was a truthful witness who candidly reported only what he had

heard." We generally must defer to the Board's credibility resolutions.

See Daniel Constr. Co., 341 F.2d at 812 ("[I]t is the responsibility of

the Board, and not this court, to resolve factual conflicts in the testi-

mony and questions of the credibility of witnesses."). We find no

basis for reversing the Board's credibility resolutions.

6

Grand Canyon argues that there is insufficient evidence that

Blankenship actually made that statement to Addair. However, Grand

Canyon misunderstands the nature of the coercive statements.

Addair's statement to Cook that the mine would close was a threat,

regardless of whether Blankenship actually told Addair that he would

close the mine because of union support. The impact of Addair's

statement on Cook is significant, whether or not Addair's statement

was true. See NLRB v. Gissel Packing Co., 395 U.S. 575, 616-18

(1969). Even if Blankenship did not make the statement to Addair or

did not actually intend to close the mine because of union support,

Cook would reasonably feel intimidated by Addair's statement. See

Coradian Corp., 287 N.L.R.B. 1207 (1988) (finding statement regard-

ing plant closure unlawful despite lack of a factual basis for predict-

ing a plant closure).

Thus, substantial evidence supports the Board's findings that

Grand Canyon's supervisors made threats that the company would

close if the employees supported the UMWA. Substantial evidence

also supports the Board's finding that the supervisors' statements

could tend to coerce or intimidate the involved employees. See Nueva

Eng'g, 761 F.2d at 966-67.

B.

We have held that an employer violates section 8(a)(1) of the Act

if it gives employees the impression that it is conducting surveillance

of their union activities. See Nueva Eng'g, Inc. , 761 F.2d at 967; J.P.

Stevens & Co. v. NLRB, 638 F.2d 676, 683-84 (4th Cir. 1980); Filler

Prods., Inc. v. NLRB, 376 F.2d 369, 374-75 (4th Cir. 1967). The

Board in the instant case concluded that supervisor Wright unlawfully

gave employee Cook the impression that Grand Canyon had con-

ducted surveillance of a past union meeting.

Substantial evidence supports the Board's finding. Cook testified

as follows:

Doug [Wright] asked me when we were going to strike or

when were we going to sign the cards.

I said, "I don't know what you are talking about."

7

He said, "You know what I am talking about. There was

sixteen of you at the meeting. Junior [foreman McCoy] saw

you all up there. I know there was sixteen of you at the

meeting."

Cook testified that Wright made those statements approximately one

week after the second union meeting on November 7, 1993. Grand

Canyon did not present any testimony or other evidence to refute

Cook's testimony. Thus, substantial evidence supports the Board's

finding that supervisor Wright did indeed make such a statement to

Cook.

Substantial evidence also supports the Board's finding that

Wright's statement unlawfully created an impression of union surveil-

lance. Grand Canyon argues that "an isolated comment" can not vio-

late the Act because it does not suggest "ongoing surveillance."

However, several courts have held that one comment can indeed vio-

late the Act as long as the comment gives the employee the impres-

sion that the employer has engaged in union surveillance. See, e.g.,

NLRB v. Rich's of Plymouth, Inc., 578 F.2d 880, 884-85 (1st Cir.

1978) (holding that a single remark created the impression of union

surveillance). An employer's reference to general facts that it has

heard, or its reference to known facts that an employee is a union

activist do not necessarily create an impression of intentional union

surveillance. See NLRB v. Pilgrim Foods, Inc. , 591 F.2d 110, 113-14

(1st Cir. 1978) (holding that a single remark did not create the impres-

sion of union surveillance where the employer only acknowledged

that the employee was a union activist and did not refer to any spe-

cific union meeting); Clark Equip. Co., 278 N.L.R.B. 498 (1986)

(reversing the ALJ's finding and concluding that a supervisor's state-

ment that he had heard that very few people attended a union meeting

did not create the impression of union surveillance because the super-

visor only referred to general or known facts that he had "heard").

However, a supervisor's statement, as in the instant case, that another

supervisor actually watched a specific union meeting and his refer-

ence to specific facts regarding the number of employees in atten-

dance at the meeting clearly could give a reasonable employee the

impression that the employer had conducted surveillance of union

activities. See Nueva Eng'g, 761 F.2d at 967 ("So long as the

employer watches employees believed to be engaged in union activi-

8

ties, the interference with statutory rights will follow."); Gupta Per-

mold Corp., 289 N.L.R.B. 1234 (1988) (affirming the ALJ's finding

that a supervisor's statement that he knew that thirteen employees had

attended the union meeting the previous day created the impression

of union surveillance); Link Mfg. Co., 281 N.L.R.B. 294 (1986)

(reversing the ALJ's finding and concluding that a supervisor's ques-

tions to an employee regarding how a union meeting had gone the

previous day and his statement that he knew that thirty-six employees

had signed union cards created the impression of surveillance),

enforced, 840 F.2d 17 (6th Cir. 1988). The employer's statement need

only contain sufficiently specific information to convey the impres-

sion that the employer or its agents has conducted union surveillance.1

Thus, substantial evidence supports the Board's finding that Grand

Canyon violated section 8(a)(1) of the Act by creating the impression

of union surveillance.

C.

The Board found that a few days after the November 1993 layoff

in section two, foreman McCoy told employee James French that his

fellow employees had been laid off because of their union activities.

Substantial evidence supports the Board's finding that McCoy did

indeed make such a statement. French testified that McCoy told him

that "he [McCoy] heard [superintendent] Bill Sawyers say that morn-

ing that the reason that the men were laid off in Section 2 was because

Ronnie Casteel and Dennis Dutton were talking union." McCoy

denied that he made such a statement. The ALJ, however, credited

French's testimony because he found French to be"a credible witness

who testified in a forthright manner and who remains an employee of

the Company, with the corresponding likelihood that he would not be

motivated to testify adversely to the Company unless his testimony

_________________________________________________________________

1 Although the evidence is not clear regarding how many employees

actually attended the second union meeting that Wright referred to, it

appears that Wright's reference to sixteen employees was not too far off.

Whether Wright was completely accurate in his statement regarding the

number of employees in attendance does not, as Grand Canyon argues,

control the case. Rather, it is enough that Wright's statement was accu-

rate enough to lead Cook to believe that Grand Canyon had conducted

surveillance of the meeting.

9

was true." As already indicated, we generally must defer to the Board

on issues of credibility and the resolution of factual disputes. See

Daniel Constr. Co., 341 F.2d at 812. Thus, substantial evidence sup-

ports the Board's finding that McCoy did indeed make such a state-

ment.

Substantial evidence also supports the Board's finding that

McCoy's statement violated section 8(a)(1) of the Act. A supervisor's

explicit statement to an employee that the company laid off his fellow

employees because of their union activities reasonably could coerce

or intimidate the remaining employees.

Grand Canyon, however, contends that this conclusion is inconsis-

tent with the Board's finding that the November 1993 layoff was lawful.2

However, no such inconsistency exists. Even if Grand Canyon had a

legitimate business justification for the November 1993 closure and

subsequent layoff, a supervisor's intentionally misleading statement

to an employee about the reason for the layoff could still constitute

a coercive statement. We must focus not on the ultimate truth of the

employer's statement, but on the impression that the statement leaves

on the reasonable employee. See NLRB v. Gissel Packing Co., 395

U.S. 575, 616-18 (1969). Thus, since McCoy's statement could tend

to coerce or intimidate a reasonable employee, we conclude that the

Board did not err in finding that McCoy's statement violated section

8(a)(1) of the Act.

IV.

Section 8(a)(3) of the Act, 29 U.S.C.A. § 158(a)(3) (West 1973 &

Supp. 1997), makes it unlawful for an employer to discharge an

employee because of the employee's union activity. Specifically, sec-

tion 8(a)(3) provides that an employer may not discriminate "in

regard to hire or tenure of employment or any term or condition of

employment to . . . discourage membership in any labor organiza-

tion." Id.

_________________________________________________________________

2 The Board found that Grand Canyon did not actually close section

two in order to retaliate against employees who had engaged in union

activities. The Board found that Grand Canyon legitimately closed sec-

tion two and laid off the section two employees for economic reasons.

10

A.

On November 16, 1993, Grand Canyon transferred Ronald Casteel

from section one of the mine to section two of the mine. Two or three

days later, Grand Canyon made the final decision to close section

two, and Grand Canyon laid Casteel off, along with the rest of the

section two employees, on November 21, 1993. As noted above, the

Board found that Grand Canyon closed section two for legitimate eco-

nomic reasons and that the November 1993 layoff itself was lawful.

However, the Board concluded that Grand Canyon transferred Casteel

to section two because of his union activities so that it could then lay

him off as part of the otherwise appropriate November 1993 layoff.

In order to establish a prima facie case of unlawful discharge under

section 8(a)(3), the Board's General Counsel must establish by a pre-

ponderance of the evidence: 1) that the employee was engaged in pro-

tected union activity; 2) that the employer was aware of the

employee's union activity; and 3) that the employee's union activity

was a substantial or motivating reason for the employer's adverse

employment action. See FPC Holdings, Inc. v. NLRB, 64 F.3d 935,

942 (4th Cir. 1995). The Board may infer discriminatory motive from

either direct or circumstantial evidence. See NLRB v. Nueva Eng'g,

Inc., 761 F.2d 961, 967 (4th Cir. 1985). Since motive is a factual

question, we must accept the Board's finding as long as the finding

is supported by substantial evidence on the record as a whole, even

though we would independently decide the issue differently. Id.

If the Board's General Counsel establishes a prima facie case, the

burden then shifts to the employer to prove affirmatively that it would

have made the same decision even in the absence of the employee's

union activities. See FPC Holdings, Inc., 64 F.3d at 942. However,

even if the employer asserts a nondiscriminatory reason for its action,

the Board may still reject the proffered reason as a pretext and find

that the employer violated section 8(a)(3). See NLRB v. Low Kit Min-

ing Co., 3 F.3d 720, 728 (4th Cir. 1993). We must affirm the Board's

finding of pretext as long as it is supported by substantial evidence.

Id.

In the instant case, the Board's General Counsel clearly established

the first element of the prima facie case. Casteel undisputedly was

11

engaged in union activity. He originally contacted UMWA's repre-

sentatives and told them that the Grand Canyon employees wanted to

meet with them, he set up union meetings with employees, and he

drafted and circulated a handwritten letter supporting the UMWA to

his fellow employees.

Substantial evidence also supports the Board's conclusion that

Grand Canyon knew about Casteel's union activity before it trans-

ferred him to section two. As noted above, supervisor Wright told

several employees the day before Grand Canyon transferred Casteel

to section two that he knew that sixteen employees had attended the

last union meeting and that foreman McCoy had seen the sixteen

employees at the meeting. Moreover, as discussed above, foreman

McCoy told several employees a few days after the transfer that

Grand Canyon laid Casteel off because he had been"talking union."

Grand Canyon correctly points out that no evidence in the record

directly establishes that Grand Canyon knew about Casteel's union

activity before the transfer. However, the Board may infer the

employer's knowledge of the employee's union activity from the facts

and circumstances surrounding the employer's actions. See FPC

Holdings, Inc., 64 F.3d at 943; NLRB v. Pilgrim Foods, Inc., 591 F.2d

110, 118 (1st Cir. 1978). The statements that supervisor Wright and

foreman McCoy made provide substantial evidence from which the

Board could infer that Grand Canyon knew about Casteel's union

activity before it transferred him to section two.

Finally, substantial evidence supports the Board's conclusion that

anti-union animus was a substantial or motivating reason for Grand

Canyon's decision to transfer Casteel to section two. For example,

employee Dutton testified that foreman McCoy told him a few days

before Grand Canyon transferred Casteel "that if[Casteel] didn't

hush, that they was going to get rid of him." Grand Canyon did not

present any evidence to refute Dutton's testimony. Moreover, Grand

Canyon witnesses testified that the company made the final decision

to close section two on November 18 or 19, 1993, only two or three

days after Grand Canyon had transferred Casteel to section two. At

the time that Grand Canyon transferred Casteel, it must have known

that an imminent shutdown was very likely. Thus, the timing of the

transfer also supports the Board's conclusion of unlawful motive. See

FPC Holdings, Inc., 64 F.3d at 943-44 (holding that the timing of the

12

layoff in question raised the inference that anti-union animus moti-

vated the layoffs). Finally, the contemporaneous section 8(a)(1) viola-

tions discussed above provide further evidence that Grand Canyon's

employment decision was motivated by anti-union animus. See id. at

944 (holding that a finding of unlawful motivation may be based on

the "timing of discharges, [the] selection of two prime movers of [the]

union drive for termination, and manifestations of hostility through

other Section 8(a)(1) violations"); NLRB v. Daniel Constr. Co., 731

F.2d 191, 197-98 (4th Cir. 1984) (holding that contemporaneous sec-

tion 8(a)(1) violations provide evidence of an employer's anti-union

animus in the discharge of a particular employee). Thus, the specific

circumstances surrounding Casteel's transfer and Grand Canyon's

widespread violations of section 8(a)(1) during the same time frame

provide substantial evidence for the Board's conclusion that anti-

union animus was a motivating or substantial factor in Grand Can-

yon's decision to transfer Casteel to section two. The Board's General

Counsel therefore established a prima facie case of a section 8(a)(3)

violation.

Grand Canyon asserted a legitimate, nondiscriminatory reason for

Casteel's transfer. Superintendent Sawyers testified that at the time of

the transfer, Grand Canyon was doing work in section one that

required timbers to support the roof rather than roof bolts. Sawyers

testified that he thought another employee in section two "would be

a better timber man and Mr. Casteel would be the better roof bolter

operator." Sawyers therefore transferred the section two employee to

section one to set timbers in section one, and he transferred Casteel

to section two, allegedly to install roof bolts in section two.

However, substantial evidence supports the Board's conclusion that

Grand Canyon's asserted justification for the transfer was a pretext.

For example, the record reveals, and Grand Canyon concedes, that it

rarely, if ever, transfers employees from one section of the mine to

the other. The fact that Grand Canyon decided to shut section two

down only two to three days after it transferred Casteel reinforces the

Board's finding of pretext. Thus, we conclude that substantial evi-

dence supports the Board's finding that the real motive for Casteel's

transfer was anti-union animus. See Perel v. NLRB, 373 F.2d 736, 737

(4th Cir. 1967) (holding that the employees' evidence balanced

against the employer's nondiscriminatory reasons raised "a question

13

of fact as to the real motive for the discharges which the expertise of

the Board is peculiarly suited to determine, and where its findings are

supported by both direct and circumstantial evidence, this court

should not substitute its judgment for that of the Board").

We therefore hold that substantial evidence supports the Board's

finding that Grand Canyon violated sections 8(a)(1) and 8(a)(3) of the

Act when it transferred and subsequently laid Casteel off.

B.

Larry French, a roof bolter, worked on the day shift in section one

of the mine. He attended both union meetings and signed an UMWA

authorization card. On February 25, 1994, Grand Canyon superinten-

dent Bill Sawyers told French that he would be transferred from the

day shift to the night shift in section one. French told Sawyers that

he could not work on the night shift because he depended on his

brother, James French, for transportation, and his brother worked on

the day shift. When Sawyers insisted on the transfer, French quit his

job at Grand Canyon. The Board concluded that Grand Canyon con-

structively discharged French in violation of sections 8(a)(3) and

8(a)(1).

In order to prove constructive discharge, the Board's General

Counsel must establish: 1) that the employer made the employee's

working conditions intolerable; 2) that the employer intentionally

made the conditions intolerable; and 3) that the employer did so

because of the employee's union activities. See NLRB v. Bestway

Trucking, Inc., 22 F.3d 177, 181 (7th Cir. 1994); J.P. Stevens & Co.

v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972). The issue of French's

discharge presents a closer case than the other alleged violations. We

conclude, however, that substantial evidence does support the Board's

conclusion that Grand Canyon constructively discharged French in

violation of sections 8(a)(3) and 8(a)(1).

First, the Board reasonably concluded that French's transfer to the

night shift created an intolerable working condition. The Board previ-

ously has held that an employer's change in job shifts, or an employ-

er's refusal to transfer an employee to another shift, can constitute an

intolerable change in working conditions. See American Licorice Co.,

14

299 N.L.R.B. 145 (1990). Grand Canyon contends, however, that the

shift change in the instant case did not create intolerable working con-

ditions because French would have received the same pay and bene-

fits on the night shift and because French's transportation problem

was personal rather than work related. However, in American Lico-

rice Co., 299 N.L.R.B. 145 (1990), the employer refused the employ-

ee's request for a transfer from the day shift to the night shift to attend

to child care problems. The ALJ found that the employee's working

conditions were not intolerable because the pay and benefits on both

shifts were the same and because the employee's problem was per-

sonal rather than work related. The Board, however, reversed the

ALJ's finding and concluded that the refused shift change created

intolerable working conditions, even though the problem arose solely

because of the employee's personal child care problems.

Grand Canyon attempts to distinguish American Licorice Co. on

the ground that transportation is a less serious problem than child care

and that it was French's responsibility to find alternative transporta-

tion. However, if an employer can create intolerable working condi-

tions by refusing to consider an employee's personal child care

problems, it seems that an employer similarly could create intolerable

working conditions by refusing to consider an employee's transporta-

tion problems. We caution that an employer's refusal to consider

an employee's transportation problems will not always or automat-

ically create intolerable working conditions. We hold only that the

Board reasonably concluded in this case, where French's truck was

incapacitated and he was completely dependent on his brother for

transportation, that Grand Canyon made French's working conditions

intolerable.

Whether Grand Canyon intentionally made French's working con-

ditions intolerable presents a close question. However, substantial evi-

dence does support the Board's conclusion that Grand Canyon should

have foreseen that its actions would cause French to resign because

it knew that French could not work on the night shift. French testified

that he had previously told foreman McCoy that his truck "blew up."

James French, Larry French's brother, testified that he parked in the

parking lot near the mine office. James also testified that Grand Can-

yon supervisors used the same parking lot. James further testified that

foreman McCoy rode with the French brothers in James's truck on at

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least one occasion, and foreman McCoy corroborated his testimony.

Although the matter is close, the Board could legitimately infer from

those facts that Grand Canyon knew that Larry French depended on

his brother for transportation and that he could not work on the night

shift. Thus, substantial evidence supports the Board's conclusion that

Grand Canyon intentionally made French's working conditions intol-

erable.

Finally, substantial evidence also supports the Board's conclusion

that Grand Canyon transferred French to the night shift because of

French's union activities. French testified that on February 22, 1994,

three days before Grand Canyon transferred him to the night shift,

supervisor Woods accused him of being a "union instigator." Woods

admitted that he made the statement, but he claimed that he was

"[j]ust joking." French further testified that when Sawyers informed

him of the transfer to the night shift, he asked whether any of the

supervisors had heard that he had engaged in union activities. Accord-

ing to French, foreman McCoy replied that he had heard that French

was a "union instigator[ ]". French's testimony was unrebutted. The

questionable reasons that Grand Canyon offered to explain its action

also support the Board's conclusion that Grand Canyon transferred

French because of anti-union animus.3 See Bestway Trucking, Inc., 22

F.3d at 181 (holding that "the demonstrated falsity of some of the rea-

sons offered by [the employer] for its actions. . . support[s] the

_________________________________________________________________

3 Grand Canyon claims that it transferred French to the night shift

because he could not bolt fast enough to maintain Grand Canyon's pro-

duction standards on the day shift. Superintendent Sawyers testified that

he therefore wanted to switch French and another employee on the day

shift with two faster and more qualified employees on the night shift.

Foreman McCoy corroborated Sawyers's testimony.

However, substantial evidence supports the Board's conclusion that

Grand Canyon's asserted justification for the transfer was a pretext.

French had worked for Sawyers for over five years with no reported

problems. Grand Canyon failed to offer any personnel records to support

its claim that French was a poor worker. Nor did Grand Canyon present

any evidence that it had orally warned French to improve his perfor-

mance. Moreover, Grand Canyon did not offer any evidence that the two

roof bolters that it transferred from the night shift to the day shift were

faster bolters than French.

16

Board's conclusion that [the employer] acted with anti-union animus"

when it made the employees' working conditions intolerable).

In summary, if we could determine the issue independently, we

might well conclude that Grand Canyon did not violate section 8(a)(3)

when it transferred French to the night shift because the evidence is

somewhat ambiguous whether Grand Canyon knew about French's

transportation problems before it decided to transfer him to the night

shift and therefore whether it intentionally made his working condi-

tions intolerable. However, we may not determine the issue indepen-

dently but instead must affirm the Board's conclusion as long as

substantial evidence supports it. See Vance v. NLRB, 71 F.3d 486, 489

(4th Cir. 1995). We find that substantial evidence does support the

Board's conclusion that Grand Canyon constructively discharged

French in violation of sections 8(a)(1) and 8(a)(3).

V.

Accordingly, we enforce the Board's order in full.

ORDER ENFORCED

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