253 F.3d 714 (D.C. Cir. 2001)
Tualatin Electric, Inc. Petitionerv.National Labor Relations Board, RespondentInternational Brotherhood of Electrical Workers, Local 48, Intervenor
No. 00-1242
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 8, 2001Decided June 15, 2001

On Petition for Review and Cross-Application for Enforcement of a Supplemental Order of the  National Labor Relations Board
Karen O'Kasey argued the cause for petitioner.  With her  on the briefs was Thomas M. Triplett.
Steven B. Goldstein, Attorney, National Labor Relations  Board, argued the cause for respondent.  With him on the  brief were Leonard R. Page, General Counsel, John H.  Ferguson, Associate General Counsel, Aileen A. Armstrong,  Deputy Associate General Counsel, and Julie B. Broido,  Supervisory Attorney.
Norman D. Malbin argued the cause and filed the brief for  intervenor International Brotherhood of Electrical Workers,  Local 48.
Nora H. Leyland and Victoria L. Bor were on the brief for  amicus curiae International Brotherhood of Electrical Workers, AFL-CIO.
Before:  Ginsburg, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge:


1
Making use of a tactic called  "salting," the International Brotherhood of Electrical Workers, Local No. 48 authorized several of its members to seek  work at Tualatin Electric, a nonunion electrical contractor, in  order to advocate union membership among Tualatin's employees and to gather information that might assist the Union  in an election campaign.  Tualatin discharged one such employee, or "salt," because of his union activity and refused to  hire four other job applicants because it suspected they were  affiliated with the Union.  The National Labor Relations  Board held, in proceedings not here under review, that the  dismissal and the refusals to hire were unfair labor practices  in violation of the  8(a)(1) and (3) of the National Labor  Relations Act, 29 U.S.C.  158(a)(1), (3).  See Tualatin  Electric, Inc., 312 NLRB 129, 135 (1993) ("Tualatin I"), enf'd  sub nom. Tualatin Electric, Inc. v. NLRB, 84 F.3d 1202 (9th  Cir. 1996) (discharge);  Tualatin Electric, Inc., 319 NLRB  1237, 1237 (1995) ("Tualatin II") (refusals to hire).


2
After further proceedings the Board awarded backpay to  the five discriminatees.  See Tualatin Electric, Inc., 331  NLRB No. 6, slip op. at 1-2 (2000) ("Decision").  Tualatin  petitions for review of the Decision on the grounds that salts  are not entitled to backpay under the Act and, in the alternative, that the Board miscalculated the amounts of backpay  due the salts in this case.  Because the Board's determinations are based upon reasonable interpretations of the Act  and of the Board's own precedents, we deny Tualatin's petition and grant the Board's application for enforcement.

I. Background

3
In 1992 the Union began an effort to organize Tualatin by  salting Project Thunder, a construction site at which Tualatin  was a subcontractor.  Under its "salt program," the Union  paid its agents working in non-union shops the amount necessary to bring their wages up to union scale;  it also required  salts to terminate their employment at the Union's behest, or  else to face substantial fines.  See Decision at 3 n.1;  Tualatin  II, 319 NLRB at 1239.  The Union's salting campaign against  Tualatin continued until December 20, 1993, when it advised  Tualatin by letter that it no longer sought either "to organize  ... [or] to represent Tualatin's employees";  referring to the  discharge and the refusals to hire at issue in this case, the  Union said that instead it "intend[ed] to use picketing to truthfully advise the public of Tualatin Electric's illegal acts." Decision at 6.


4
In July 1992 Edward Campbell, having agreed to salt  Tualatin for the Union, sought and obtained a job as a  journeyman electrician on Tualatin's Project Thunder.  Two  weeks later he was cashiered.  Tualatin I, 312 NLRB at 131. In settlement of the resulting unfair labor practice (ULP)  case, Tualatin agreed to reinstate Campbell;  when Campbell  reported for work, however, Tualatin assigned him not to  Project Thunder but to its Wal-Mart jobsite, which increased  his round-trip daily commute by at least 60 miles.  See  Tualatin I, 312 NLRB at 132;  Decision at 6.  Campbell,  believing that employment at Wal-Mart did not constitute  "reinstatement," abandoned the job after two days.  Tualatin  I, 312 NLRB at 132.  The Board concluded that Tualatin  violated the settlement agreement by substituting Wal-Mart  for Project Thunder, and that Tualatin had dismissed Campbell in the first place because of his union activity.  Id. at 133, 135.  The Board ordered Tualatin to reinstate Campbell and  scheduled further proceedings to determine the amount of  backpay due him.  Id. at 129, 135.  The Ninth Circuit denied  Tualatin's petition for review of the Board's holding that it  had violated the settlement agreement.  See Tualatin Electric, 84 F.3d at 1205.


5
Several months after Campbell's botched reinstatement,  Tualatin denied the employment applications of four other  union salts, including Gary Mangel.  The Board found that  Tualatin had unlawfully refused to hire the four because it  knew or suspected they were connected with the Union.  The  Board ordered that they be hired and that further proceedings be conducted to determine the amount of backpay due  each.  Tualatin II, 319 NLRB at 1241-42.  Tualatin agreed  not to contest the "findings of fact and conclusions of law  underlying" Tualatin II except insofar as they concerned  "the amount of backpay due";  the Board then consolidated  the backpay proceedings arising from Tualatin I and Tualatin II.  Decision at 3.


6
In those proceedings the ALJ rejected Tualatin's argument  that salts are not entitled to backpay under the Act.  He also  held that the salts' backpay remedies should be calculated  under the rubric of Dean General Contractors, 285 NLRB  573 (1987), whereby the Board presumes, subject to rebuttal  by the employer, that an unlawfully discharged employee in  the construction industry would have been reassigned to a  new project upon the termination of the project at which he  had been working.  The ALJ further held, contrary to Tualatin's position, that (1) backpay was available for the period  after the Union's letter announcing the termination of its  organizing effort;  and (2) seeking employment exclusively at  union shops did not breach the salts' duty to mitigate, for  which "a discriminatee need only follow his regular method  for obtaining work."  Id. at 5.


7
The ALJ also resolved several issues regarding mitigation  in favor of particular discriminatees.  He concluded that the  period for which Campbell was due backpay was not tolled by  his departure from the Wal-Mart project;  "inasmuch as the Ninth Circuit and the Board had concluded that his reinstatement was invalid, Campbell was not required to have accepted it under any circumstances."  Id. at 6.  Nor was backpay  tolled when Campbell resigned a salting job with another  nonunion contractor at the direction of the Union;  avoiding  union discipline, ruled the ALJ, is "good cause" for quitting a  nonunion job.  Id. Finally, the ALJ held that backpay for  Gary Mangel was not tolled when he refused several shortterm jobs so that he would not lose his eligibility for a longterm job under the rules of the Union's hiring hall.  Id. at 9.


8
The Board upheld the decisions of the ALJ in all respects,  id. at 1-2, Member Hurtgen dissenting in part.  Tualatin now  petitions for review of the Board's decision, and the Union  intervenes on behalf of the Board.

II. Analysis

9
Tualatin challenges several of the legal principles the  Board applied in calculating the amount of backpay due the  discriminatees.  We uphold the Board's legal determinations  so long as they are neither arbitrary nor inconsistent with  established law.  See, e.g., Lee Lumber & Bldg. Material  Corp. v. NLRB, 117 F.3d 1454, 1460 (D.C. Cir. 1997) (NLRB  "to be given a great deal of deference in developing the rules  that it will apply to particular situations").


10
First, Tualatin argues that salts are necessarily ineligible  for a backpay remedy, which "must be sufficiently tailored to  expunge only the actual, and not merely speculative, consequences of" an ULP.  Sure-Tan, Inc. v. NLRB, 467 U.S. 883,  900 (1984) (emphases omitted).  The employer contends that  a damages due a salt are invariably speculative because a  salt's job tenure depends not only upon his employer but also  upon his union.  Contrary to the Board's claims, Tualatin is  not estopped from making this argument by its agreement  not to contest the findings and conclusions reached in Tualatin II:  the argument addresses "the amount of backpay due,"  which Tualatin expressly reserved the right to challenge. Nor is the argument precluded by Tualatin Electric v.  NLRB, which decided only that Campbell's assignment to the Wal-Mart project did not amount to reinstatement, and enforced a Board order that by its terms requires further  proceedings to determine Tualatin's backpay liability.  84  F.3d at 1205-06.


11
On the merits, however, we agree with the Board that  Tualatin's argument is incompatible with the Supreme  Court's holding that, although he "serv[es] two masters," a  salt is an "employee" within the meaning of the National  Labor Relations Act, 29 U.S.C.  152(3).  NLRB v. Town &  Country Elec., Inc., 516 U.S. 85, 94-95 (1995).  In light of the  Court's holding that salts "do not forfeit their 'employee'  status or their statutory protection from unlawful discrimination," the Board properly reasoned that neither "do [salts]  forfeit their eligibility for backpay ... to remedy the discrimination."  Decision at 1 (citing Town & Country, 516 U.S. at  95).


12
Second, Tualatin objects to the Board's presumption that  the discriminatees' employment would not have ended with  Project Thunder, which the Board based upon a line of cases  originating with Dean, 285 NLRB at 575.  See Decision at 1; see also Casey Elec. Inc., 313 NLRB 774, 774 (1994).  An  employer may rebut the Dean presumption by showing that  under its "established policies," the employee would not have  been reassigned.  Decision at 1.  Tualatin does not claim to  have rebutted the presumption;  instead it argues that Dean  should be overruled or, in the alternative, not applied to cases  involving salts.  Again we reject the Board's objection to an  argument being raised but agree with the Board on the  merits.


13
The Board contends that its reliance upon Dean in Tualatin I and II precludes Tualatin from relitigating here the  applicability of that case;  in fact, however, the two earlier  proceedings leave open the question whether Dean should be  applied when calculating backpay for salts.  In Tualatin I the  only reference to Dean is "for the proposition that the  question of whether backpay is due a discriminatee ... is  appropriately resolved during the compliance process."  Tualatin I, 312 NLRB at 129 n.1.  Although the Board said in Tualatin II that "reinstatement and backpay recommendations are subject to the procedures discussed in Dean," 319  NLRB at 1242, here the employer, as we noted above,  reserved the right to challenge those aspects of Tualatin II  relevant to the calculation of "the amount of backpay due."


14
On the merits, Tualatin first suggests generally that the  Dean rule is unduly complicated and prejudicial to employers  in the construction industry, who in staffing an ever-changing  roster of projects will often have lawful reasons for not  transferring a particular employee.  That is no basis, however, for concluding that Dean's allocation of the burden of  production is arbitrary or contrary to law.


15
The employer then claims that Dean should not be applied  to salts.  Dean places upon the employer the burden of  showing that an employee would not have been transferred in  part because the relevant "[e]vidence ... would tend primarily to be in the possession of the respondent employer which  controls the decision whether to transfer or reassign."  Dean,  285 NLRB at 574-75.  Tualatin argues that because a salt's  ability to "transfer or reassign" depends upon the union's  approval, in salting cases it is the union that "tend[s] primarily" to have the relevant evidence.  To continue imposing the  evidentiary burden upon the employer when the evidence is in  the hands of the union would, according to Tualatin, be a  "terrible injustice."


16
Tualatin overstates the degree to which the Dean presumption is based upon the employer's superior access to evidence; that is but one of several reasons underpinning Dean.  At  least as important, per the Board, is the judgment that the  policies of the Act make it undesirable "to apply a presumption in favor of an adjudicated wrongdoer while seeking to  remedy the underlying unfair labor practice committed  against the aggrieved employee."  Dean, 285 NLRB at 574; see also Ferguson Elec. Co., Inc., 330 NLRB No. 75, slip op.  at 3 (2000), enf'd, 242 F.3d 426 (2d Cir. 2001) ("The Board  resolves compliance-related uncertainties or ambiguities  against the wrongdoer").  The principle that the party who  has acted unlawfully should bear the burden of producing evidence for the purpose of limiting its damages has as much  force in a case involving salts as in any other.  We therefore  hold that the Board may apply the Dean presumption when  calculating the backpay due to salts.  The employer, of  course, retains the correlative right to seek out and to present  evidence that a salt would not have been transferred at the  conclusion of the project on which he last worked, whether by  reason of the union's policies or of its own.


17
Third, Tualatin objects to the Board's determination that  the salts "satisf[ied] their obligation to mitigate damages  because they followed their normal pattern of seeking employment through the Union's hiring hall."  Decision at 1. The employer claims first that the agency precedents the  Board cites in support of this conclusion are distinguishable  and inapposite.  That is of no moment, for the Board is  entitled to elaborate upon its previous decisions in any way  that it reasonably believes will advance the purposes of the  Act.  The Board did not unreasonably extend its precedents  in applying here its rule that an employee's normal jobseeking efforts fulfill the duty to mitigate.  See Ferguson  Elec., 330 NLRB No. 75, slip op. at 6 ("In seeking interim  employment, a discriminatee need only follow his regular  method for obtaining work");  cf. Big Three Indus. Gas, 263  NLRB 1189, 1217 (1982), overruled on other grounds, American Navigation Co., 268 NLRB 426, 427 (1983) (reasonable  for employee searching for work in mitigation to hew to  jobseeking patterns "tradition[al] in the trade").


18
Tualatin also echoes an argument raised by Member Hurtgen in dissent:  because salts were authorized to work on  some nonunion jobs at the time they were dismissed or not  hired, they should be required to seek nonunion work in  mitigation.  As Member Hurtgen put it, that the Union might  not approve of such employment "cannot be a justification for  a failure to mitigate."  Decision at 3.  Although that position  is certainly reasonable, it is not unreasonable for the Board to  limit the duty to mitigate so as not to require a salt to accept  employment that would subject him to union discipline or  require him to abandon full union membership.  We therefore  uphold the Board in this respect as well.


19
Fourth, Tualatin challenges the Board's decision that backpay continued to accrue after the Union announced the end of  its salting campaign.  According to Tualatin this is inappropriate because the end of the Union's organizing effort also  would have marked the end of the salts' employment.  As the  Board points out, however, what Tualatin ignores is that "the  Union continued to authorize its members to work for the  Respondent after [the end of the campaign] in order to obtain  information in support of its area standards picketing."  Decision at 1 n.1.  We therefore reject Tualatin's argument.


20
Fifth, Tualatin contends that its backpay obligation to  Campbell ended when he quit two days after Tualatin had  "reinstated" him at the Wal-Mart Project.  Because "Project  Thunder was coming to a conclusion" while the Wal-Mart  project "promised substantial additional work into the indefinite future," Tualatin maintains that Campbell at least should  have been required to keep working while he asked the Board  for relief.  "[P]ublic policy reasons," says Tualatin, "strongly  support the work and grieve concept."  The Board, however,  unanimously adopted the conclusion of the ALJ that Campbell's quitting was not a breach of his duty to mitigate  because, "as the Ninth Circuit and the Board had concluded  that his reinstatement was invalid, Campbell was not required  to have accepted it under any circumstances."  Decision at 6. The Board also noted that the Wal-Mart project was significantly further from Campbell's home than was Project Thunder, making the two positions not "substantially equivalent." Id.  Tualatin nowhere explains why its policy judgment  should outweigh the deference owed to the Board's contrary  judgment.


21
Alternatively, Tualatin claims the Board should have tolled  Campbell's backpay as of his acceptance, with Union approval, of employment as a salt at another nonunion contractor. Campbell worked at that job for two weeks before quitting at  the behest of the Union.  See Decision at 2.  The Board held  that Campbell could, without reducing his entitlement to  backpay, resign rather than having to stay on that job and  "subject himself to internal union discipline."  Id.  Tualatin  argues that the precedent cited by the Board, Local 90 Operative Plasterers v. Cement Masons' Int'l Ass'n, 252  NLRB 750, 754 (1980), is not controlling;  that is irrelevant  because the Board never suggested its holding was compelled  by that case.  See Decision at 2.  Tualatin argues further  that it is "[in]appropriate," "ironic[ ]," and contrary to both  "[c]ommon sense" and "[c]ommon decency" to hold a salt's  employer liable for backpay when "the Union, for its own  reasons, elects to require its employee/members to terminate  [their mitigating] employment with a third party."  The  Board, however, is of the view that it would be "inappropriate" to require an employee acting to mitigate the injury  caused by an employer's ULP to subject himself to union  sanctions that he would not have incurred had the employer  not acted unlawfully.  Mere disagreement with this policy  view -and that is all Tualatin offers -is not a basis upon  which this court may reverse a decision of the Board.  See,  e.g., Pacific Micronesia Corp. v. NLRB, 219 F.3d 661, 665  (D.C. Cir. 2000).


22
Finally, Tualatin objects to the Board's holding that Mangel did not breach his duty to mitigate by declining offers of  short-term work so he could remain eligible, under the rules  of the Union's hiring hall, for a long-term assignment.  See  Decision at 9.  The Board endorsed the ALJ's determination  that "[a] discriminatee may legitimately refuse a referral if he  can reasonably expect to obtain employment in the future  which would clearly be a better opportunity."  Id. (quoting  Plumbers Local 305, 297 NLRB 57, 60 (1989)).  Yet again,  Tualatin's argument that the ALJ's decision is not compelled  by the cited precedent is unavailing.  Tualatin also argues  that it would be more sensible to require an employee to  accept any job offered because one can never be sure how  long a purportedly longer job will actually last.  In the view  of the Board, however, an employee does not violate his duty  to make a "diligent or reasonable search" for work when he  rejects a short-term assignment based upon a "reasonable  expectation" -which necessarily falls short of a certainty that doing so will enhance his chances to secure a long-term  job.  See Decision at 9.  This position, being neither unreasonable nor contrary to precedent, commands the deference  of the court.

III. Conclusion

23
Because the Board's Decision is reasonable and consistent  with applicable law, we deny Tualatin's petition for review  and grant the Board's application for enforcement.


24
So ordered.

