

                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  &amp; Hostetler,  Heber  E. Lugo-Rigau  and  Ledesma, Palou  &amp;                                                                           
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

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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.

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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

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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

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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  &amp; 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 &amp;  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 &amp; 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-
