
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2026                           NATIONAL LABOR RELATIONS BOARD,                                     Petitioner,                                          v.                              HOSPITAL SAN RAFAEL, INC.,              AND CENTRO MEDICO DEL TURABO, INC., AND ITS SUBSIDIARIES,                     TURABO MEDICAL CENTER LIMITED PARTNERSHIP AND                     HOSPITAL INTERAMERICANO DE MEDICINA AVANZADA,                                     Respondents.                                 ____________________                    ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF                           THE NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                                 Breyer,* Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            David  A. Grant with whom Betty Southard Murphy, Jean H. Baker,            _______________           _____________________  _____________          Baker  & Hostetler,  Heber  E. Lugo-Rigau  and  Ledesma, Palou  &          __________________   ____________________       _________________          Miranda were on brief for respondents.          _______            Fred  L. Cornnell  with whom  Frederick C.  Havard, Supervisory            _________________             ____________________          Attorney, Daniel  Silverman, General Counsel, Linda  Sher, Acting                    _________________                   ___________          Associate  General  Counsel,  and  Aileen  A.  Armstrong,  Deputy                                             _____________________          Associate General Counsel,  National Labor Relations Board,  were          on brief for petitioner.                                 ____________________                                  December 12, 1994                                 ____________________                                        ____________________          *Chief Judge Stephen  Breyer heard oral argument in  this matter,          but did not  participate in the drafting  or the issuance  of the          panel's  opinion.   The remaining  two panelists  therefore issue          this opinion pursuant to 28 U.S.C.   46(d).                 BOUDIN, Circuit  Judge.   This is a  difficult labor-law                         ______________            case made even more difficult because the pertinent doctrines            have  confusing   labels,  overlap  with   one  another   and            occasionally mutate.  We begin with the facts and  procedural            history,  and then address the legal issues and the claims of            error.                                          I.                 For  many  years,  Hospital  San   Rafael,  Inc.,  ("San            Rafael")  operated a neighborhood  hospital in Caguas, Puerto            Rico.  In 1978,  two doctors--Jaime Soler and  Jose Badillo--            bought  somewhat over 80 percent of San Rafael's stock; Soler            owned  about 70  percent of  the joint  holdings and  Badillo            about 30  percent.  The doctors then  hired Joaquin Rodriguez            as  the  hospital's  president.     These  three  individuals            comprised the hospital's board.                 San  Rafael was in poor financial shape, and in mid 1978            the  Puerto Rico  health authorities  said that  the hospital            would have to remedy  problems in its physical plant  or lose            its  eligibility   to  treat  Medicare  patients.    Medicare            patients  accounted   for  almost  half  of   the  hospital's            occupancy.  Soler, Badillo and Rodriguez began to discuss the            construction of a new hospital.   It was conceived that a new            corporation  would be established,  partly because San Rafael            itself could not obtain  loan funds, and in addition  the new                                         -2-                                         -2-            hospital was expected to be more than a local hospital and to            draw patients from the Caribbean basin.                 Centro Medico was created in  August 1978 to operate the            proposed  new hospital under the name Hospital Interamericano            de Medicina Avanzada ("Hospital  Interamericano").  In  1981,            Soler  had 40 percent of  the shares, Badillo  20 percent and            Rodriguez  20 percent.    Ultimately,  Soler's ownership  was            reduced to 38 percent, Badillo and Rodriguez each owned about            19  percent, and 19 percent was acquired by Carlos Pineiro, a            longtime associate  of Rodriguez.   From the  start Rodriguez            was  Centro Medico's  president, and  Soler and  Badillo were            among the board members.                 At various times, Rodriguez spoke about the new hospital            as if it were an expansion of San Rafael, and San Rafael made            interest-free cash  advances for the construction  of the new            hospital  and took  other steps  to support  its development.            San  Rafael  was  granted  a   waiver  as  to  its   Medicare            deficiencies  because of  the plans  to open a  new hospital.            Later,  San  Rafael agreed  to surrender  its own  license to            operate a hospital,  in order to facilitate the  licensing of            the new hospital.                   San Rafael ceased  operation on November  14, 1988.   On            November 18, 1988, the  new Centro Medico hospital, operating            as Hospital Interamericano, opened to the public.  Rodriguez,            Soler and  Badillo continued  to hold their  prior positions.                                         -3-                                         -3-            Pineiro,  who  since  1987  had been  responsible  for  labor            relations at San Rafael,  became the new hospital's executive            vice  president.  A majority of the supervisors of San Rafael            and  most of  the  other  employees  transferred to  the  new            hospital.                 Against  this background  labor disputes  developed that            led  to the present litigation.   In January  1984, the Union            Nacional  de  Trabajadores  de  la Salud,  Local  1199  ("the            union")   became   the   certified    collective   bargaining            representative  of  two units  of  San Rafael  employees:   a            professional unit (e.g.,  registered nurses) and  a technical                               ____            unit that included other employees.  San Rafael and the union            entered into  an agreement effective from  September 1, 1984,            to August  31, 1987, also  agreeing that this  contract would            continue until a new contract replaced it.                 San  Rafael employee Milton Suarez  had been a leader in            the organization of the union and had been discharged for his            organizing  activities, although  later  reinstated.   Suarez            helped negotiate  the September 1984 contract  and became the            union's chief steward.  In 1985, Suarez began to question San            Rafael about the  effect that the planned  new hospital would            have on job security.  On August 30, 1985, Rodriguez issued a            memorandum  to San  Rafael  employees stating  "on behalf  of            Hospital San Rafael and of Centro Medico del Turabo" that the                                         -4-                                         -4-            employees  would be  "transferred" with  the same  salary and            benefits to the new hospital.                   In May 1987, the union  sought to begin negotiations for            a new  contract and  proposed  an agreement  naming both  San            Rafael and  Centro Medico as  parties.  San  Rafael indicated            that Centro  Medico would not  recognize or bargain  with the            union  because it was certified  only to represent San Rafael            employees.   The National Labor Relations  Board (the "Board"            or "NLRB")  issued a complaint  charging that San  Rafael and            Centro  Medico were a single employer and alter egos, and had            unlawfully  refused  to  bargain  with  the  union  over  the            inclusion of Centro Medico.                 The  union reached  separate settlement  agreements with            San Rafael and Centro Medico in  May 1988.  San Rafael agreed            to  negotiate in good faith with the union, and Centro Medico            promised  to hire on a  nondiscriminatory basis and to retain            95  percent  of San  Rafael's employees  to  work at  the new            hospital; Centro  Medico stipulated  that it was  not thereby            agreeing  to recognize the union.  The union, in exchange for            the settlements, withdrew its  unfair labor practice charges,            and the NLRB then withdrew the complaint.                   Negotiations between the union and the two hospitals did            not  prove  fruitful.   In October  1988,  the union  filed a            petition  with  the  NLRB  seeking  to  have  the  settlement            agreements  set  aside, and  the  pre-agreement unfair  labor                                         -5-                                         -5-            practice  charges  reopened,  because  San   Rafael  had  not            complied  with the settlement agreement.  In August 1989, the            district  court granted  a  preliminary injunction  requiring            Centro  Medico to  bargain  in  good  faith, and  this  court            affirmed.  See Asseo  v. Centro Medico del Turabo,  Inc., 900                       ___ _____     _______________________________            F.2d 445 (1st Cir. 1991).                   From the outset  in 1988, the new Centro Medico hospital            claimed  that it was free to alter working conditions at will            and that it need not recognize the union.   Although most San            Rafael employees were hired  by the new hospital,  Suarez was            not.   Neither were four other employees who had been closely            connected  with union  activities and  acted at  one time  or            another  as  union stewards.   In  these  five cases  the new            hospital  did  not formally  refuse  to  hire the  employees;            several were told that  their applications were under review,            but  Centro  Medico then  took  no  official  action  on  the            applications.                 In  December  1989, the  union  filed  new unfair  labor            practice charges.  These included charges that both hospitals            had failed to bargain in good faith and had engaged in unfair            labor practices  by refusing  to hire the  five union-related            employees.  A Board complaint was filed in February 1989.  On            May 4,  1989, an  administrative law  judge entered  an order            conditionally  setting  aside   the  settlement   agreements,                                         -6-                                         -6-            reinstating the  old charges and consolidating  them with new            ones.  Hearings were held between May 1989 and May 1990.                 On  June 19,  1991, the  ALJ found  that San  Rafael and            Centro  Medico  were  alter   egos  and  comprised  a  single            employer;  alternatively, Centro  Medico  was found  to be  a            successor employer to San Rafael.  The ALJ found that the San            Rafael  settlement agreement  had  been entered  into in  bad            faith  and should  be permanently  set aside.   The  ALJ also            found that  the hospitals had violated their duty to bargain,            29 U.S.C.    158(a)(5), and Centro  Medico's failure to  hire            four of the  five employees  was also found  to be  wrongful.            Id.   158(a)(3).            ___                 On  review, the  Board,  acting  through three  members,            found that the two hospitals were a single employer and alter            egos but  did not reach  the successor-employer  issue.   The            Board  agreed with the ALJ  that the hospitals had improperly            failed to bargain with  the union and that Centro  Medico had            unilaterally changed employee working conditions.  Failure to            rehire all five  employees was  found to be  improper.  By  a            divided vote, the  Board held that the San  Rafael settlement            agreement was properly set aside.                 The Board entered  a remedial order containing  specific            provisions designed to compel Centro Medico to bargain and to            provide redress for the five employees.  The Board order also            broadly   forbade  future   infringement  of   worker  rights                                         -7-                                         -7-            protected under  "section 7."   29 U.S.C.    157.   The Board            then filed in  this court the present application  to enforce            its order.   29 U.S.C.    160(e).  The hospitals  opposed the            application.                                         II.                 In this court, the main issue raised by the hospitals is            whether  San  Rafael and  Centro  Medico can  be  treated for            present  purposes as if they were one  entity.  This issue is            critical  because  the   only  signed  collective  bargaining            agreement is between the union and San Rafael.  Centro Medico            is  required to  respect that  agreement, and  bargain before            making  unilateral  changes  in working  conditions,  only if            Centro  Medico is an extension  of San Rafael.   We therefore            begin  by describing  three different  but related  labor-law            doctrines considered by the agency.                 One  concept,  known  colloquially  as  the   alter  ego            doctrine, says that in certain situations one employer entity            will  be regarded as a continuation of a predecessor, and the            two will be treated  interchangeably for purposes of applying            labor laws.  The easiest  example is a case where the  second            entity  is created by the owners of the first for the purpose                                                                  _______            of  evading  labor  law  responsibilities;  but  identity  of            ownership, management, work force,  business and the like are            also  relevant.   See  C.E.K. Indus.  Mechanical Contractors,                              ___  ______________________________________            Inc. v. NLRB, 921 F.2d 350 (1st Cir. 1990).              ____    ____                                         -8-                                         -8-                 A second rubric--the "single employer" doctrine--has its            primary  office in the  case of two  ongoing businesses which            the NLRB wishes  to treat as a single employer  on the ground            that they are owned and operated as a single unit.   Penntech                                                                 ________            Papers, Inc. v. NLRB,  706 F.2d 18 (1st Cir.),  cert. denied,            ___________     ____                            ____________            464 U.S. 892 (1983).   Most of the alter ego  criteria remain            relevant but  motive is normally considered  irrelevant.  The            consequences of single employer and alter ego  status are not            necessarily the same.  See C.E.K., 921 F.2d at 354.                                     ___ ______                 A   final,  narrower   doctrine  applies   to  so-called            "successor" companies.    Where,  for  example,  a  unionized            business is acquired by a new owner unaffiliated with the old            one,  the new  employer  may not  be  bound by  a  collective            bargaining agreement with  the old  one.  See  NLRB v.  Burns                                                      ___  ____     _____            Sec.  Servs.,  406  U.S.  272  (1972).    But   where  enough            ____________            continuity exists  in the  business and  work force, the  new            owner  may, without  any  new certification,  be required  to            treat the  union as the  recognized bargaining agent.   E.g.,                                                                    ____            Fall  River Dyeing  & Finishing  Corp. v.  NLRB, 482  U.S. 27            ______________________________________     ____            (1987).                   This overview of  the three doctrines imparts  to them a            neatness that is not borne out by the circuit caselaw or even            the Board's  decisions.  See,  e.g., 4 T. Kheel,  Labor Law                                       ___   ____               _________            17.02 (1994).    In  part,  the difficulty  is  that  several            related  and  similarly  named  concepts are  being  used  to                                         -9-                                         -9-            address   different   controversies   (e.g.,   jurisdictional                      _________                    ____            aggregation,  maintenance  of  parallel  union  and non-union            businesses,   inherited   liability   for  past   misconduct,            inherited contractual obligations,  carry-over obligation  to            bargain, etc.).                       ___                 In  all events, the Board's order here in dispute can be            sustained  on  the alter  ego  theory.   The  single employer            doctrine,  as it  has developed  historically, seems  to have            little application  to this case--which does  not involve two            ongoing businesses coordinated  by a common  master.  See  A.                                                                  ___  __            Dariano &  Sons, Inc.  v. District Council  of Painters,  869            _____________________     _____________________________            F.2d  514,  519  (9th  Cir.  1989);  International  Union  of                                                 ________________________            Operating Eng'rs v. Centor  Contractors, Inc., 831 F.2d 1309,            ________________    _________________________            1313 n.2 (7th  Cir. 1987).   As for  "successor" status,  any            relief available under this theory would be less far reaching            than that based on the alter ego theory.                 In determining alter ego status, the NLRB and the courts            have, as  noted in  C.E.K., considered  a  range of  criteria                                ______            including the similarity between the old and new companies in            relation   to   management,   business  purpose,   operation,            equipment, customers  and supervision, as well  as ownership.            In  most cases,  a  further important  factor in  determining            alter  ego status is whether the alleged alter ego entity was            created and  maintained in order to  avoid labor obligations.            In a rare discussion of the doctrine, the Supreme Court said:                                         -10-                                         -10-                      It is important to  emphasize that this is not                 a  case where  the  successor  corporation  is  the                 "alter ego" of the predecessor, where it is "merely                 a  disguised  continuance  of  the  old  employer."                 Southport Petroleum Co. v.  NLRB, 315 U.S. 100, 106                 ________________________________                 (1942).  Such cases involve a mere technical change                 in the  structure  or  identity  of  the  employing                 entity, frequently to avoid the effect of the labor                 laws,   without  any  substantial   change  in  its                 ownership or management.   In these  circumstances,                 the courts have had  little difficulty holding that                 the successor  is in reality the  same employer and                 is  subject  to  all   the  legal  and  contractual                 obligations of the predecessor.            Howard  Johnson Co. v. Hotel Employees, 417 U.S. 249, 259 n.5            ___________________    _______________            (1974).                 Howard  Johnson supplies  an animating  purpose for  the                 _______________            alter ego doctrine,  and also helps sort out the relationship            between subjective  motive  and objective  criteria.   Motive            matters,   we  think,   because   a  corporate   transfer  or            transformation  for  the   purpose  of  avoiding   labor  law                                       _______            obligations  is an  unsympathetic  case  for  respecting  the            formal alteration, and faced  with a subterfuge--e.g., a sham                                                             ____            transfer  of assets--the  courts  reasonably  need give  less            weight  to  the  other  "identity" criteria.    See  Penntech                                                            ___  ________            Papers, 706 F.2d at 24.            ______                 But  in our own case the decision of San Rafael's owners            to  establish  a  new  hospital occurred  for  financial  and            operational  reasons  that  have  nothing to  do  with  labor            relations.   The union did  not even exist  when the original            plans for the new hospital were laid.  The Board's claim that            Centro Medico's "purpose" was not  improper at the outset but                                         -11-                                         -11-            became  improper  simply because  Centro  Medico  declined to            bargain  makes little sense in  the context of  the alter ego            doctrine.  After  all, if  the two companies  were not  alter                                   __            egos,   Centro  Medico's  desire  to  resist  obligations  or            liabilities of  San Rafael  would be  understandable.   If an            improper  motive in creating the  new entity were  a sine qua                                                                 ________            non of the alter ego doctrine, then we think the Board  would            ___            be hard-pressed to defend its order in this case.                 In Howard Johnson, however,  the Supreme Court said that                    ______________            wrongful  motive is  "frequently"  present in  the alter  ego            cases; it did not say "always."  Similarly, we have said that            "[n]o  one factor is controlling, and all need not be present            to support a  finding of  `alter ego status.'"   C.E.K.,  921                                                             ______            F.2d at  354.   After all,  if a  company merely  changed its            corporate form for legitimate tax or corporate reasons, it is            hard to see why the new entity should be able to disregard an            existing  collective bargaining  agreement or  claim immunity            when told to reinstate a worker wrongly fired by the old one.            This view--that a wrongful  motive is not required--is shared            by  most other circuits.   See Note,  86 Mich.  L. Rev. 1024,                                       ___           ______________            1045 (1988) (collecting cases).1                                            ____________________            1Since our  discussion in Penntech and C.E.K.  has given rise                                      ________     ______            to some uncertainty about  this court's position on the  role            of  wrongful motive in alter ego cases, this opinion has been            circulated  prior  to filing  to  all active  judges  of this            court, and no member of the court expressed disagreement with            the  panel's   treatment  of   the  issue.     This  informal            circulation is without prejudice  to a petition for rehearing                                         -12-                                         -12-                 The problem here, as so often  with similar concepts, is            in  how far to  carry the notion  of "disguised continuance,"            Howard  Johnson,  417  U.S.  at   249  n.5,  where  there  is            _______________            substantial  continuity  but  also  some  limited  change  in            ___________                         ____            ownership and operations.   Continuity of ownership,  perhaps            the most important predicate, does exist in this case.  Soler            and Badillo owned 87 percent of the stock in San Rafael;  and            the  same individuals  came to  own about  60 percent  of the            stock in  Centro Medico, their proportionate  shares inter se                                                                 ________            remaining the same.  The two  other important stockholders of            Centro Medico, Rodriguez and Pineiro, were closely associated            with San Rafael.                 Other criteria of identity  point in the same direction.            In upper  management, Rodriguez  served as president  both of            San Rafael and Centro Medico.  Soler, Badillo,  Rodriguez and            Pineiro were directors, officers  or both in each of  the two            entities.  The ALJ found that about 85 of the 102 lower level            supervisors at  the new hospital had also been supervisors at            the  old one.  The new hospital  agreed to hire 95 percent or            more  of the old hospital's  employees and the  ALJ said that            this had occurred.                 The two  hospitals are in the same  business and operate            in  the  same  community.   It  is  true  that Centro  Medico                                            ____________________            or  suggestion of en banc reconsideration on any issue in the            case.   See Trailer Marine Transport Corp. v. Rivera Vazquez,                    ___ ______________________________    ______________            977 F.2d 1, 9 n.5 (1st Cir. 1992).                                         -13-                                         -13-            operates  a  300-bed tertiary  care  hospital  and presumably            draws from a  larger area;  San Rafael was  a local  hospital            with  just  over  100 beds.    Little  of  the equipment  was            transferred from one to the other and doctors' privileges had            to  be renewed.  But  San Rafael effectively  planned the new            hospital, helped  finance it, and surrendered  its license so            the  new one  could obtain  a  license.   Both in  origin and            function, the  new hospital is essentially  an enlargement of            the old one.                 Thus,  a  substantial--not  a complete--identity  exists            between  the  two hospitals  along  every  axis:   ownership,            senior  management,  supervisory  management, employee  base,            geographic location  and basic business function.   The alter            ego doctrine has been  devised by the Board with  approval of            the courts,  and  the  agency  is entitled  to  a  reasonable            latitude in applying  its own doctrine.  See generally Phelps                                                     _____________ ______            Dodge Corp. v. NLRB, 313 U.S. 177  (1941).  Whether the alter            ___________    ____            ego doctrine can be  stretched much beyond the present  facts            may be open  to debate,  but this case  is within  reasonable            limits.                   Next,  San  Rafael  claims  that  the  Board  was  not            warranted  in  setting aside  the  May  19, 1988,  settlement            agreement  between the union and San Rafael.  In prior cases,            the  Board has  set  aside settlements  where the  settlement            agreement  has  been   materially  breached  and   the  party                                         -14-                                         -14-            responsible entered  into the agreement in  bad faith without            an  intention to  carry out  its  commitments.   E.g., Norris                                                             ____  ______            Concrete Materials, 282  N.L.R.B. 289 (1986).   In this case,            __________________            the ALJ set the settlement agreement aside on the ground that            San Rafael entered into it in bad faith and then breached the            agreement.  The Board sustained this determination by  a two-            to-one vote, one member dissenting on this issue alone.                 We  review the findings  of the Board  only to determine            whether  they  are supported  by  substantial  evidence.   29            U.S.C.   160(e).   The ALJ, whose rationale was  adopted in a            condensed form  by  the Board  majority,  said that  the  two            hospitals had to know of  their own internal relationship and            therefore, knew or  should have known  their legal status  as            alter egos; that the promise by San Rafael to bargain in good            faith therefore included a commitment to bargain on behalf of            Centro  Medico; and  that  because San  Rafael resisted  that            obligation  it  must  never  have  meant  to carry  out  this            attributed commitment.                 We think that this reasoning is unpersuasive and that no            other evidence shows  that the agreement was entered  into in            bad faith.  There is proof that San Rafael knew that it had a            duty to  bargain for Centro  Medico.   The ALJ said  that San            Rafael  "should  have known"  of  its  prospective alter  ego            status, but  we do not  see why.   The two hospitals  are not            identical   in   every  respect,   no   mathematical  formula                                         -15-                                         -15-            determines  alter ego status, and  this case is  a close one.            Bad  faith is  more  than mere  negligence.   See  Voccio  v.                                                          ___  ______            Reliance  Ins. Cos.,  703 F.2d  1, 2  (1st Cir.  1983).   The            ___________________            Board's brief hints that  bad faith may not be  required, but            bad faith  was the only  basis given  in this case.   SEC  v.                                                                  ___            Chenery Corp., 318 U.S. 80, 88 (1943).            _____________                 However,  there is no showing  by the hospitals that the            setting aside of the settlement  agreement had any effect  on            the Board's  other determinations or on any of the provisions            of  its   remedial  order.    Conduct   occurring  after  the                                                               _____            settlement  agreement was  the  subject of  new unfair  labor            practice  charges  in December  1988.    These included  both            failure to bargain and  discrimination against union members.            These  charges are amply supported by the record even if only            conduct after May 1988 is the focus of consideration.                 On   the  failure  to   bargain  charge,  Centro  Medico            persistently  refused to  recognize  the union  and,  shortly            after the  new hospital opened, it made unilateral changes in            the  employees'  working  conditions  without  attempting  to            bargain.   Since we have upheld the alter ego theory advanced            by the Board, we think that it follows that Centro Medico was            obligated to recognize  and bargain with  the union; that  it            was bound by the collective  bargaining agreement to the same            extent as San Rafael; and that it was subject to the ordinary            obligations of an employer with a union contract to negotiate                                         -16-                                         -16-            about changes.  Good faith is not generally a defense to such            charges.  ILGWU v. NLRB, 366 U.S. 731, 738-40 (1961); NLRB v.                      _____    ____                               ____            Cooke & Jones, Inc., 339 F.2d 580, 581 (1st Cir. 1964).            ___________________                 The Board  also had ample evidence for  its finding that            the  five named union members not rehired were the subject of            anti-union discrimination by Centro Medico.  It is sufficient            to  say  that all  five  employees were  identified  with the            union,  no persuasive reason appears  why any of  them was so            refused  a position at the  new hospital, and  the excuses or            evasions practiced by Centro  Medico in dealing with  each of            the five affirmatively suggests that discrimination was being            practiced.  The Board  and administrative law judge decisions            adequately set forth the circumstances.                   We  turn now  to  remedy.   The  treatment of  the  five            employees was  egregious enough to justify  the Board's broad            remedial direction  that the hospitals cease  and desist from            infringing  "in any  other  manner" on  employees' section  7            rights.  The hospitals  say that a proper order  would merely            prohibit Centro Medico  from acting "in  any like or  related            manner," but  the broader version--carrying with  it the risk            of  contempt  sanctions--has  been  found  proper  where  the            employer's  violations  are  either  repeated  or  egregious.            Wyman-Gordon  Co. v.  NLRB, 654  F.2d 134,  146-47 (1st  Cir.            _________________     ____            1985).  None of the other remedial provisions are challenged,                                         -17-                                         -17-            and each other  remedy appears  justified by  post-settlement            misconduct by the hospitals.                                         III.                 To  sum up,  we agree  with the  hospitals that  the bad            faith finding as to  the May 1988 settlement and  the setting            aside  of  the  San   Rafael  settlement  agreement  are  not            supported.    We  are   also  doubtful  whether  the  "single            employer"  doctrine  could  be  a basis  for  sustaining  the            Board's  order.    But  the  alter  ego  doctrine  reasonably            applies; the  unfair labor practice  findings are  adequately            supported by the post-settlement misconduct; and the remedies            ordered are  within the Board's discretion.   Accordingly, we            enforce the Board's order as written.                 It is so ordered.                 ________________                                         -18-                                         -18-
