Fоllowing a contentious union organization campaign, the majority of employees at California Acrylic Industries, Inc., d/b/a Cal Spas (“Cal Spas”), voted to strike. Soon thereafter, the employees began picketing Cal Spas’ facility. Within a month, the strikers unconditionally offered to return to work; Cal Spas, having hired replacements, refused their offer. The National Labor Relations Board (“NLRB”), adopting the recommended order of an Administrative Law Judgе (“ALJ”), ruled that the strike was an unfair labor practice strike and ordered Cal Spas to reinstate the striking employees with back pay. Cal Spas timely petitions this court for review of the NLRB’s order. The NLRB cross-petitions for enforcement of its order. We enforce the NLRB’s order in part and deny enforcement in part.
BACKGROUND
Cal Spas manufactures spas, gazebos, saunas, and pool tables at its facility in Pomona, California. In March of 1998, the United Electrical, Radio and Machine Workers of America (the “Union”) began an organization campaign among the production and maintenance employees at Cal Spas’ Pomona facility.
During the organization campaign, Cal Spas engaged in several unfair labor practices: Cal Spas threatened to move its business, coercively interrogated employees, and coercively disciplined an employee for engaging in union activity. Cal Spas does not dispute these violations. The NLRB did not find that these unfair labor practices were a cause of the June 18 strike. ,
On May 28,1993, the Union filed a petition for a representation election with the NLRB’s Regional Director for Region 21. A few days later, Cal Spas’ management rented videocamera equipment and purchased blank videotapes. This equipment was provided to Cal Spas’ security guards. On June 4, a security guard videotaped а meeting between employees and Union representatives during the employees’ lunch hour. Despite some contradictory testimony by Cal Spas’ management, Cal Spas denies that the guard videotaped this meeting. In the alternative, Cal Spas maintains that any videotaping was justified by Union violence or trespass.
The next night, a larger group of Union organizers and employees met to discuss their options. During the meeting, the Union organizers decided to request a strike vote at the June 18 rally at Cal Spas’ Pomona facility. Cal Spas alleges that the decision to strike was made at the June 17 meeting because Union members believed Cal Spas had blocked the election.
On June 18, the Union conducted a rally outside Cal Spas’ Pomona faсility. Union Representative Humberto Camacho addressed the many employees in attendance. Reading from a prepared text, he stated that the employees of Cal Spas were outraged that Cal Spas had, among other things, “videotaped and surveilled our discussions with union representatives, in violation of Section 8(a)(1) of the Act.” Cal Spas denies that Camacho ever mentioned the surveillance. Vicente Castillo, a Cal Spаs’ employee, then asked the employees to vote on a strike. A majority of the employees voted to strike. As a result, the employees stopped working and began picketing Cal Spas’ facility.
On July 19, Camacho, on behalf of the striking employees, tendered Cal Spas an unconditional offer to return to work. After delivering this unconditional offer to return, the striking employees continued to picket. Cal Spas refused the offer to return, stating that the workers had been replaced because of their participation in an economic strike. Furthermore, Cal Spas claimed that widespread sexual, harassment by striking employees vitiated any right to reinstatement.
The NLRB issued complaints against both Cal Spas and the Union. The NLRB severed the case against the Union and, on December 5, 1994,. an ALJ began a hearing on the charges against Cal Spas. After the hearing, the NLRB issued an order affirming the ALJ’s rulings, findings, and сonclusions that the June 18 strike was caused, in part, by the June 4 videotape surveillance, an unfair labor practice under section 8(a)(1) of the National Labor Relations Act (“Act”), 29 U.S.C. § 158(a)(1). Consequently, the NLRB found that the strike was an unfair labor practice strike and that the employees were entitled to reinstatement. In addition, the NLRB rejected Cal Spas’ claims that widespread sexual. harassment by striking employees vitiated any right to reinstatement.
Cal Sрas timely petitions this court for review of the NLRB’s order. The NLRB timely cross-petitions for enforcement of its order.
STANDARD OF REVIEW
We “will enforce a decision of the NLRB if ‘its findings of fact are supported by substantial evidence and if the Board correctly applied the law....’” New Breed Leasing Corp. v. NLRB,
DISCUSSION
I.
The first issue in this case concerns the alleged videotaping of Union activity by Cal
A.
The NLRB relied on many sources of evidence in finding that Cal Spas videotaped Union activity on June 4. First, General Counsel’s Exhibits 3 and 5 are photographs which depict a Cal Spas security guard operating a videocamera during what appears to be Union organizing activity. These photographs сonfirm that Cal Spas rented and used video equipment. Second, Union organizers Humberto Camacho and David Baieon testified that the photographs were taken on June 4 during a meeting with Cal Spas employees. Third, Cal Spas’ own witness, Robert Suminski, confirmed that Cal Spas “rented the [video] cameras on the 3rd” of June. Fourth, Suminski testified that the photographs in Exhibits 3 and 5 were taken in “the early June days.” Another Cal Spas witness conceded that the pictures were taken before the strike. This evidence clearly supports the NLRB’s conclusion, that Cal Spas videotaped Union organizing activities on June 4.
Given the above evidence, the NLRB did not err when it discredited the testimony of Cal Spas’ other witnesses. Some of these witnesses testified that the videocameras were obtained only after the strike had begun and were to be used only to record strike-related incidents. That testimony conflicts with the admission by Sumin-ski that the exhibit рhotographs were taken in “the early June days.” Furthermore, we must accord substantial deference to the ALJ’s evaluation of the testimonial evidence. See Penasquitos Village, Inc. v. NLRB,
B.
The NLRB further concluded that Cal Spas’ videotaping of Union activity on June 4 was an unfair labor practice in violation of section 8(a)(1) of the Act. Cal Spas argues that, even if the videotaping occurred, it was not an unfair lаbor practice because it was justified and not coercive. A review of the record, however, confirms that the NLRB did not err when it characterized the surveillance as an unfair labor practice.
Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” 29 U.S.C. § 158(a)(1). Section 7 of the Act guarantees employees the right, inter alia, to “form, join, or assist labor organizations.” 29 U.S.C. § 157. The NLRB and the courts have long recognized that employers violate section 8(a)(1) by engaging in activity that tends to chill an employee’s freedom to exercise his section 7 rights. See, e.g., NLRB v. Southern Md. Hosp. Ctr.,
We have stated that “[i]n the absence of proper justification, the photographing of pickets violates the Act because it has a tendency to intimidate.” Kallmann v. NLRB,
Cal Spas argues that its June 4 surveillance was justified to document Union trespass and/or violence. The NLRB properly rejected this claim. First, Cal Spas’ purported evidence of trespass, General Counsel Exhibit 6, does not support its contention. That photograph shows Union Representative Camacho standing on a public sidewalk, speaking with Cal Spas employees. The employees were permitted to congregate and engage in organizing activities on Cal Spas’ property during their lunch hour. Cоnsequently, the photograph does not show a trespass.
Second, Cal Spas’ claim that surveillance was justified because of Union violence is also meritless. Employers are not allowed to photograph protected activity simply because they fear “something might happen.” See F.W. Woolworth Co.,
In sum, the NLRB properly held that Cal Spas’ surveillance of protected activity on June 4 occurred and was an unfair labor practice in violation of section 8(a)(1) of the Act. The surveillance was not justified by Union misconduct.
II.
The larger and more difficult issue in this case is whether the NLRB erred when it found that the June 18 strike was an unfair labor practice strike, rather than an economic strike. The significance of that conclusion is that only unfair labor practice strikers are entitled to reinstatement with back pay, even when they have been replaced. See NLRB v. International Van Lines,
It is well-established that an unfair labor practice need only be a contributing cause of a strike to produce an unfair labor practice strike. We have noted that a strike based in part on an unfair labor practice is “ ‘an unfair lаbor practice strike, even though other reasons [are] also present, since one of the reasons for it [is] to protest an unfair labor practice.’ ” Airport Parking Management v. NLRB,
In finding that the strike was based in part on Cal Spas’ illegal surveillance, the NLRB relied solely on statements made by Union Representative Camacho during the June 18 rally.
We reject this mechanical rule because it places form over substance. Under the rule, any strike following an unfair labor practice is an unfair labor practice strike provided the union organizers had the foresight to mention the unfair labor practice before the vote. Needless to say, this rule invites manipulation. Thе proper inquiry is whether, under the circumstances in each case, the employees voted to strike at least in part because of the unfair labor practice. In this case, the record does not provide substantial evidence that they did.
The only evidence used to support the NLRB’s conclusion is Camacho’s pre-strike mention of the surveillance. Meanwhile, the record is replete with evidence that the strike was not motivated by the unfair labor practice. First, the strike occurred soon after the Regional Director postponed the June 17 representation election petition hearing— a postponement issued in response to Cal Spas’ filing of an unfair labor practice charge against the Union. In contrast, the strike was some two weeks after the June 4 surveillance. While not entirely inconsistent with a determination that the surveillance was a contributing cause of the strike, the timing of the strike strongly suggests it was a reeognition or economic strike, undertaken to protest Cal Spas’ blocking of the election.
Second, Union literature issued before and after the strike vote enumerated causes and justifications for the work stoppage, but failed altogether to mention the June 4 surveillance. Instead, the leaflets focused on economic concerns, including lack of medical insurance and low wаges. This failure to mention the surveillance suggests that it was not a contributing cause.
Third, Union Representative Camacho appeared before the Pomona City Council during the strike and informed them that “[tjhrough [Cal Spas’] action, our right to vote was taken away.... We went on strike because the company denied us that right to vote on a union.” All of his comments pertained to economic or Union representation issues. He did not mention the surveillancе as a contributing cause.
Fourth, an objective observer, newspaper reporter Jeremy Sullivan, who was present at the June 18 rally, testified that he was told by “some folks who represented themselves as being with the [Union]” that the strike was a “recognitional [sic] strike.” He was not told that the Union intended to protest the June 4 surveillance.
Finally, most'of the striking employees filed claims for unemployment insurance with the State of California. The necessary forms require the employee to explain, in detail, why he is no longer working for his previous employer. The ALJ entered five of these employment separation statements into the record; none of them mentions the surveillance as a cause of the strike. Instead, they focus on lack of insurance, low pay, and long hours, the hallmarks of an economic strike.
The NLRB discounted this overwhelming evidence simply because Camacho mentioned the surveillance prior to the strike vote. If the June 4 unfair labor practice was truly a contributing cause of the strike, however, one would expect it to be reflected somewhere other than solely in a prepared list read by Camacho at the pre-strike rally. There is no mention of it in pre- or post-strike Union
Our conclusion is supported by the analysis in several similar cases. In NLRB v. Colonial Haven Nursing Home, Inc.,
Likewise, in F.L. Thorpe & Co., Inc. v. NLRB,
In sum, the NLRB erred by holding that whenever a union organizer mentions an unfair labor practice prior to a strike vote, any subsequent strike is necessarily an unfair labor practice strike. The proper inquiry is whether the employees actually voted to strike at least in part because' of the unfair labоr practice. After thoroughly reviewing the record, we are unable to find substantial evidence that they did. The vast majority of the evidence points to one inescapable conclusion: the strike was motivated solely by economic concerns. To ignore this evidence is to permit union organizers to transform an otherwise economic strike into an unfair labor practice strike simply by invoking a few magic words. See Colonial Haven,
III.
Because we conclude that the June 18 strike was an economic strike, Cal Spas “may refuse to reinstate [the] strikers if in the interim [it] has taken on permanent replacements.” NLRB v. International Van Lines,
We enforce the NLRB’s order in part and deny enforcement in part, in accordance with this opinion.
Notes
. We adopt these facts from the NLRB’s order. Cal Spas, however, challenges several of these findings. We note, therefore, any relevant disagreements by the parties.
. The order also concluded that Cal Spas had engaged in other unfair labоr practices that did not contribute to the employees' decision to strike. Cal Spas does not challenge that portion of the order.
. Union officials also testified during the hearing that the illegal surveillance was discussed during pre-strike meetings. The NLRB, however, did not rely on this testimony in concluding that the surveillance was a contributing cause of the strike.
. Indeed, several Union organizers conceded that they discussed the postponement during the June 17 meeting at which the decision to seek a strike vote was made.