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

                     15
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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