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Steven J. Campbell, Hitesh S. Deshmukh, Charlotte L. Nelson, In-Gyu Bae, Martin E. Stryjewski, Jerome J. Federspiel, Giang T. Tonthat, Thomas H. Rude, Steven L. Barriere, Ralph Corey, Vance G. Fowler, Jr.
The impact of bacterial genetic characteristics on the outcome of patients with Staphylococcus aureus infections is uncertain. This investigation evaluated potential associations between bacterial genotype and clinical outcome using isolates collected as part of an international phase 2 clinical trial (FAST II) evaluating telavancin for the treatment of complicated skin and skin structure infections (cSSSI). Ninety S. aureus isolates from microbiologically evaluable patients with cSSSI enrolled in the FAST II trial from 11 sites in the United States (56 isolates, or 62%) and 7 sites in South Africa (34 isolates, or 38%) were examined for staphylococcal cassette chromosome mec, agr, and the presence of 31 virulence genes and subjected to pulsed-field gel electrophoresis (PFGE). South African methicillin-susceptible S. aureus (MSSA) isolates were more likely to carry certain virulence genes, including sdrD (P = 0.01), sea (P < 0.01), and pvl (P = 0.01). All 44 (49%) methicillin-resistant S. aureus (MRSA) isolates were from the United States; 37 (84%) were strain USA 300 by PFGE. In the United States, MRSA isolates were more likely than MSSA isolates to carry genes for sdrC (P = 0.03), map/eap (P = 0.05), fnbB (P = 0.11), tst (P = 0.02), sea (P = 0.04), sed (P = 0.04), seg (P = 0.11), sej (P = 0.11), agr (P = 0.09), V8 (P = 0.06), sdrD, sdrE, eta, etb, and see (P < 0.01 for all). MRSA isolates were more often clonal than MSSA isolates by PFGE. Isolates from patients who were cured were significantly more likely to contain the pvl gene than isolates from patients that failed or had indeterminate outcomes (79/84 [94%] versus 3/6 [50%]; P = 0.01). S. aureus strains from different geographic regions have different distributions of virulence genes.
Staphylococcus aureus causes a diverse spectrum of infections in humans, ranging from superficial skin infections to endocarditis, bone and joint infections, and septic shock (8). A growing body of evidence suggests that the presence of specific bacterial genetic characteristics can contribute to the severity of infection (1, 2, 11). However, despite significant advances in our understanding of the pathogenesis of S. aureus infections, the full impact of bacterial strain characteristics on the outcome of patients with S. aureus infections is unknown.
In the current study, we genotyped a collection of S. aureus isolates collected as part of an international clinical trial (FAST II) evaluating telavancin for the treatment of complicated skin and skin structure infections (cSSSI). Using these results, we compared the presence of distinct genotypic characteristics to the outcome and examined the geographic distribution of strains.
Patients and settings.Methods for FAST II were previously described (30). In brief, FAST II was a randomized, double-blind, active-control, parallel-group international phase II clinical trial which compared intravenous telavancin (10 mg/kg q 24 h) to intravenous standard therapy (vancomycin, 1g administered every 12 h [q 12 h]; nafcillin or oxacillin, 2g q 6 h; or cloxacillin, 0.5 to 1g q 6 h) for the treatment of cSSSI. For the current study eligible patients were males or nonpregnant females who were ≥18 years of age and who (i) had a diagnosis of cSSSI (defined as the presence of a major abscess requiring surgical drainage; deep, extensive cellulitis; an infected wound or ulcer; or an infected burn accompanied by purulent discharge and at least three other signs or symptoms of infection); (ii) had a pure culture of S. aureus isolated from the infected soft tissue site; and (iii) were evaluated by study investigators at a test-of-cure visit, conducted 7 to 14 days after administration of the last dose of the study medication. The investigation was approved by Duke University Medical Center Institutional Review Board.
PFGE.Pulsed-field gel electrophoresis (PFGE) with SmaI was performed on all isolates, and the gels were analyzed using the BioNumerics software (Applied Maths, Kortrijk, Belgium) as described by McDougal et al. (19). Dice coefficients (pairwise similarity) were calculated for each pair of isolates, and a dendrogram was constructed using an optimization value of 0.50% and a position tolerance ranging from 1.25% to 1.35% (end of the fingerprint).
PCR assays for genotyping.S. aureus strains were grown on trypticase soy agar overnight (37°C), harvested by gently scraping the cells off each plate, and resuspended in (300 μl) MicroBead solution containing 20 μl of lysostaphin (1 mg/ml; Sigma Aldrich, St. Louis, MO). The genomic DNA was extracted using an Ultraclean Microbial DNA Kit (MolBio Laboratories, Carlsbad, CA) according to manufacturer's instructions, and DNA concentration was determined by an ND1000 spectrophotometer (NanoDrop Technologies, Wilmington, DE). The DNA samples were stored at −20°C until used for subsequent analysis. Thirty-three bacterial determinants were examined using PCR assays; these included toxins (sea, seb, sec, sed, see, seg, seh, sei, sej, tst, eta, etb, hlg, and PVL), adhesins (bbp, clfA, clfB, cna, ebpS, fnbA, fnbB, map/eap, sdrC, sdrD, sdrE, and spa), agr groups I to IV, staphylococcal cassette chromosome mec (SCCmec) types I to IV, and other virulence genes (chp, efb, icaA, V8, and arcA). Primers and conditions used to amplify the genes of interest are described in Table 1. PCR amplifications were performed in a Dyad thermal cycler (Bio-Rad, Hercules, CA) with HotStart Taq polymerase (Qiagen, Valencia, CA). Genomic DNA (≈100 ng) was added to 1× multiplex PCR mix containing 3 mM MgCl2, a 10 mM concentration of the deoxynucleoside triphosphates, a 0.2 μM concentration (each) of the forward and reverse primers, and Taq polymerase. PCR products were analyzed by 2% agarose gel electrophoresis. A positive control and a negative control (ATCC 6358) were included in each PCR run.
PCR was used to screen for a total of 33 genes. Of these, 30 genes were evaluated using multiplex PCR. To minimize the possibility of false-negative calls, genes that were not detected in the multiplex PCR assay were subsequently reanalyzed by uniplex PCR for confirmation of presence or absence of the gene. spa, arcA, and agr groups I to IV were detected using uniplex PCR alone. This was performed due to the presence of multiple repeats in the spa gene that interfered with the detection of other genes. agr groups I to IV were detected serially using primers described by Peacock et al. under conditions described in Table 1 (26). To verify the designation of the USA 300 genotype, the arginine catabolic mobile element-encoded arcA was evaluated using PCR (9). The positive control for the arginine catabolic mobile element was strain NRS384 from the Network on Antimicrobial Resistance in Staphylococcus aureus.
SCCmec typing.SCCmec typing was performed using multiplex PCR as described by Oliveira and de Lencastre (25). SCCmec types I and IV were further validated using uniplex PCR as previously described (24, 35).
Statistical methods.Categorical variables were analyzed using Pearson's chi-square test. All P values and confidence intervals (CIs) were two sided. Because there were no methicillin-resistant South African isolates, the evaluation of bacterial genotype associations with geographical location and methicillin resistance was limited to subgroups. Specifically, the association tests between genetic content and geography were restricted to methicillin-susceptible S. aureus (MSSA) isolates only, and the association tests between genetic content and methicillin susceptibility were restricted to isolates from the United States only. Significance levels were corrected for multiple tests using the false discovery rate (FDR) procedure (27). FDR thresholds of 5% and 20% were reported to balance the type I and type II error probabilities. Simpson's index of diversity and the corresponding CIs were calculated using methods previously described (13, 29). All analyses were conducted in R and verified in SAS, version 9.1 (SAS Institute Inc., Cary, NC).
S. aureus isolates were available from 90 study patients from 18 centers (11 from the United States and 7 from South Africa) who met criteria for the current analysis (Table 2). Most of these patients were white males. Forty-four of these 90 isolates (49%), all from U.S. sites, were methicillin-resistant S. aureus (MRSA). Deep abscesses were the most common form of infection in the study patients (73%), followed by cellulitis (17%). Overall, 93% of the patients were cured.
Presence of putative virulence determinants in clinical strains.The distribution of virulence genes is shown in Table 3. Several of these virulence genes were highly conserved among the overall group. For example, all isolates of S. aureus had genes for spa and clfA. As expected, significant differences were observed in the genotype of MRSA and MSSA isolates. Based on a 5% FDR threshold, MRSA isolates in the United States were significantly more likely than MSSA isolates in the United States to carry the genes sdrD, sdrE, eta, etb, and see (Table 3).
PFGE profiles.The PFGE profiles of MSSA isolates exhibited a larger index of diversity than MRSA isolates (Simpson's index of diversity, 0.90 [95% CI, 0.86 to 0.95] for MSSA and 0.29 [95% CI, 0.11 to 0.47] for MRSA). Among the 44 MRSA isolates, 38 (86%) were SCCmec IV and 6 (14%) were SCCmec II. Most MRSA isolates (37 isolates, or 84%) were USA 300, while the remaining isolates were USA 100 (2 isolates, or 5%), USA 400 (1 isolate, or 2%) or were untypeable (4 isolates, or 9%) (see Fig. S1 in the supplemental material). By contrast, among the 45 MSSA isolates, most (26, or 58%), were not previously identified PFGE types (see Fig. S2 in the supplemental material). PFGE on one MSSA isolate was unsuccessful. A significant proportion (10, or 29%) of MSSA isolates from South Africa belonged to a single clonal subtype (indicated as E in Fig. S2 in the supplemental material). By contrast, most MSSA isolates from the United States were either USA 300 (4, or 36%) or USA 200 (3, or 24%) (see Fig. S2 in the supplemental material). All USA 300 MRSA isolates contained the arcA element by PCR.
Associations of geographic region and bacterial gene distribution.Potential associations between geographic region and bacterial genetic content were considered. To do this, we compared the distribution of 33 virulence genes among MSSA isolates from the United States to that of MSSA isolates from South African patients. Since all MRSA isolates were obtained from U.S. sites, they were excluded from this analysis. The results of these comparisons are provided in Table 4. Based on a 20% FDR threshold, South African MSSA isolates were significantly more likely to contain sdrD (P = 0.01), sea (P < 0.01), and pvl (P = 0.01) than U.S. MSSA isolates. South African MSSA isolates also demonstrated distinct genotypes by PFGE compared to U.S. MSSA isolates (see Fig. S2 in the supplemental material).
Association of bacterial genotype and patient clinical outcome.Next, we evaluated potential associations between the presence of putative virulence genes and clinical outcome (Table 5). The isolates from patients who were cured were significantly more likely to contain the pvl gene (79/84 isolates, or 94%, versus 3/6 isolates, or 50%; P = 0.01; 20% FDR threshold) than isolates from patients that failed or had an indeterminate outcome.
In the current investigation we used a collection of clinically well-characterized S. aureus isolates from patients with same type of infection (cSSSI) from different regions of the globe to evaluate potential associations between bacterial genotype and clinical outcome. Our investigation yielded several key observations.
First, our results demonstrated the impact of geography on the genetic composition of S. aureus, even among isolates associated with the same form of infection. In the current study, strains of MSSA causing skin and soft tissue infections in South Africa were significantly more likely to contain a variety of toxins or leukocidins, including pvl and sea, than MSSA isolates causing similar infections in the United States. Interestingly, these genes are known to be contained on mobile genetic elements, such as pathogenicity islands and bacteriophages (23). Thus, this observation could be due to regional dissemination of S. aureus clones containing these mobile genetic elements. In addition, the PFGE patterns of the South African and U.S. isolates were largely distinct. While our report is the first to compare detailed genotypic characteristics of S. aureus isolates causing soft tissue infections in different regions of the globe, our findings are consistent with prior observations (3, 28, 31).
Over 90% of the S. aureus isolates in this investigation contained the pvl gene. Although numerous studies have described the high rates of the pvl gene among strains of MRSA causing skin and soft tissue infections (5, 12, 17, 22, 34), its prevalence in the current study was higher than previously reported. There are two potential explanations for this observation. First, the investigation focused exclusively on S. aureus isolated from skin and soft tissue infections, a clinical condition in which pvl has been strongly associated. By contrast, many previous investigations included S. aureus from other sites of infection in which pvl is less frequently encountered. Second, the investigation was contemporary. As a result, the microbiology of the current investigation more accurately reflected the emergence of the USA 300 clone as the predominant cause of soft tissue infections (21). Interestingly, the role of the pvl product, a bi-component of leukocidin, in the pathogenesis of these infections is still a subject of debate. For example, one group of investigators concluded that pvl was not a major virulence factor in a murine model of S. aureus sepsis (32), while another group concluded that pvl plays a critical role in the pathogenesis of S. aureus necrotizing pneumonia (15). In the current study, a high prevalence of pvl was seen in both MSSA and MRSA isolates, providing further epidemiological evidence linking the presence of this gene and the occurrence of skin and soft tissue infections.
Interestingly, in the current study the presence of pvl was significantly associated with better cure rates than infections caused by S. aureus not containing the pvl gene. This observation may be due in part to the high frequency of abscesses among infections caused by the pvl-constituitive isolates (7), as these lesions may often be treated with surgical drainage alone (16). Patients infected with pvl-constitutive strains of community-associated MRSA (CA-MRSA) have been shown to experience similar hospitalization rates (6) and outcomes (18, 20) as patients infected with strains of MRSA not containing this gene. Finally, skin and soft tissue infections produced by CA-MRSA and CA-MSSA are not clinically distinguishable (20). Taken together, these observations suggest that the presence of pvl, per se, does not confer a worse clinical course in skin and soft tissue infections caused by S. aureus in general and MRSA in particular.
Our results are consistent with a growing number of reports documenting the emerging importance of the USA 300 clone as a predominant cause of community-acquired skin and soft tissue infections in the United States (7, 14, 21). All of the MRSA isolates in this study were from the United States, and most (>80%) were strain USA 300.
This investigation was designed to evaluate potential associations between the presence of putative virulence genes in S. aureus and the outcome of skin and soft tissue infections caused by this bacteria. Our findings are consistent with prior studies. For example, Peacock and colleagues found that seven genes (fnbA, cna, sdrE, sej, eta, hlg, and ica) were significantly more common in S. aureus isolates associated with invasive infection than in nasal carriage isolates. (26). However, it is possible that our results may simply reflect the clonal nature of strains associated with these infections, or the genes identified in our analyses may be in linkage disequilibrium with other genes not tested in this analysis that influence the pathogenesis of these infections. Future studies should therefore focus on validating these findings using other collections of S. aureus isolates and on evaluating the biological relevance of these associations in vivo.
This study was limited by its relatively small sample size. These isolates were collected from a clinical trial and may not necessarily be representative of the epidemiology of infections in the study area. Additionally, at least in part due to the small sample size, there were no MRSA isolates within the South African subset of our collection, while more than three-quarters of the U.S. isolates were MRSA. For this reason, it was necessary to limit the evaluation of geographical differences in virulence factors to the MSSA subset in order to minimize the confounded effects of geography and MRSA/MSSA status in our sample. Other investigations currently under way using larger international collections of S. aureus isolates from soft tissue infections (4) and endocarditis (10) may be able to more fully characterize the geographical distribution of virulence factors and potentially validate the observations made in the current study. The current investigation evaluated only the presence or absence of particular genes based on PCR. Thus, it was not designed to evaluate expression of these genes or the presence of single nucleotide polymorphisms, which can influence the function of the gene products (33). Finally, this evaluation focused by design only upon infections in which the causative organism was available for culture. As a result, these observations cannot be generalized to soft tissue infections if the pathogen cannot be cultured.
Despite these limitations, however, the results of the current investigation offer several important observations. Although the pvl gene was found in the majority of MSSA and MRSA strains causing soft tissue infection in this study, its presence was associated with a better clinical outcome. The relative distribution of virulence genes differs significantly among S. aureus strains from different parts of the world—even when these bacteria are associated with same type of infection. The genetic variation in these clinical S. aureus isolates emphasizes the diversity of this emerging cause of human infections.
We gratefully acknowledge the important statistical contributions of Lauren M. McIntyre.
This study was supported by funding from Theravance Corporation.
Returned for modification 24 October 2007.
↵▿ Published ahead of print on 12 December 2007.
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Steven J. Campbell, Hitesh S. Deshmukh, Charlotte L. Nelson, In-Gyu Bae, Martin E. Stryjewski, Jerome J. Federspiel, Giang T. Tonthat, Thomas H. Rude, Steven L. Barriere, Ralph Corey, Vance G. Fowler Jr.

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Justia › US Law › US Case Law › US Supreme Court › Volume 465 › NLRB v. City Disposal Systems, Inc.
National Labor Relations Board v. City Disposal Systems, Inc.
Section 7 of the National Labor Relations Act provides that employees shall have the right to join or assist labor organizations, to bargain collectively, and "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The collective bargaining agreement between respondent and the union representing its truckdrivers provides that respondent shall not require employees to operate any vehicle that is not in safe operating condition, and that "[i]t shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified." One of respondent's employees (James Brown) was discharged when he refused to drive a truck that he honestly and reasonably believed to be unsafe because of faulty brakes. After the union declined to process Brown's grievance under the bargaining agreement, he filed an unfair labor practice charge with the National Labor Relations Board (NLRB), challenging his discharge. An Administrative Law Judge concluded that, even though Brown acted alone in asserting a contractual right, his refusal to operate the truck constituted "concerted activit[y]" protected by § 7, and that respondent had therefore committed an unfair labor practice in discharging him. The NLRB adopted the Administrative Law Judge's findings and conclusions and ordered Brown's reinstatement with backpay, applying its longstanding "Interboro doctrine," which was based on the conclusions that an individual's reasonable and honest assertion of a right contained in a collective bargaining agreement is an extension of the concerted action that produced the agreement, and that the assertion of such a right affects the rights of all employees covered by the agreement. However, the Court of Appeals denied enforcement of the NLRB's order, finding that Brown's refusal to drive the truck was an action taken solely on his own behalf, and thus was not a concerted activity within § 7's meaning.
1. The NLRB's Interboro doctrine is a reasonable interpretation of the Act. Pp. 465 U. S. 829-839.
same place toward a common goal, or to situations where a lone employee intends to induce group activity or acts as a representative of at least one other employee. The invocation of a right rooted in a collective bargaining agreement is unquestionably an integral part of the process that gave rise to the agreement. The Interboro doctrine is entirely consistent with the Act's purposes, which include the encouragement of collective bargaining and other practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions. Moreover, § 7's general history reveals no inconsistency between the Interboro doctrine and congressional intent to equalize the bargaining power of management and labor. As long as the employee's statement or action is based on a reasonable and honest belief that he is being, or has been, asked to perform a task that he is not required to perform under his collective bargaining agreement, and the statement or action is reasonably directed toward the enforcement of a collectively bargained right, there is no justification for overturning the NLRB's judgment that the employee is engaged in concerted activity. Pp. 465 U. S. 830-837.
(b) The fact that an activity is concerted does not necessarily mean that an employee may engage in the activity with impunity. If an employee engages in concerted activity in a manner that is overly abusive or violative of his collective bargaining agreement, his actions would be unprotected. P. 465 U. S. 837.
(c) There is no merit to the argument that the Interboro doctrine undermines the arbitration process by providing employees with the possibility of provoking a discharge and then filing an unfair labor practice claim. An employee who purposefully follows this route would run the risk that the NLRB would find his actions concerted but nonetheless unprotected. More importantly, to the extent that the factual issues raised in an unfair labor practice action have been, or can be, addressed through the grievance process, the NLRB may defer to that process. Pp. 465 U. S. 837-839.
unsafe, because the bargaining agreement required that the truck be objectively unsafe, confuses the threshold question whether Brown's conduct was concerted with the ultimate question whether that conduct was protected. The latter question should be considered on remand. Pp. 465 U. S. 839-841.
683 F.2d 1005, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. 465 U. S. 841.
prescribed by law. It shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified. [Footnote 1]"
to resolve the conflict, 460 U.S. 1050 (1983), and now reverse.
The facts are not in dispute in the current posture of this case. [Footnote 5] Respondent, City Disposal Systems, Inc. (City Disposal), hauls garbage for the city of Detroit. Under the collective bargaining agreement with Local Union No. 247, respondent's truckdrivers haul garbage from Detroit to a landfill about 37 miles away. Each driver is assigned to operate a particular truck, which he or she operates each day of work, unless that truck is in disrepair.
James Brown was assigned to truck No. 245. On Saturday, May 12, 1979, Brown observed that a fellow driver had difficulty with the brakes of another truck, truck No. 244. As a result of the brake problem, truck No. 244 nearly collided with Brown's truck. After unloading their garbage at the landfill, Brown and the driver of truck No. 244 brought No. 244 to respondent's truck-repair facility, where they were told that the brakes would be repaired either over the weekend or in the morning of Monday, May 14.
"there's something wrong with that truck. . . . [S]omething was wrong with the brakes . . . there was a grease seal or something leaking, causing it to be affecting the brakes."
Brown did not, however, explicitly refer to Article XXI of the collective bargaining agreement or to the agreement in general. In response to Brown's refusal to drive truck No. 244, Jasmund angrily told Brown to go home. At that point, an argument ensued and Robert Madary, another supervisor, intervened, repeating Jasmund's request that Brown drive truck No. 244. Again, Brown refused, explaining that No. 244 "has got problems, and I don't want to drive it." Madary replied that half the trucks had problems, and that, if respondent tried to fix all of them, it would be unable to do business. He went on to tell Brown that "[w]e've got all this garbage out here to haul and you tell me about you don't want to drive." Brown responded, "Bob, what you going to do, put the garbage ahead of the safety of the men?" Finally, Madary went to his office and Brown went home. Later that day, Brown received word that he had been discharged. He immediately returned to work in an attempt to gain reinstatement, but was unsuccessful.
On May 15, the day after the discharge, Brown filed a written grievance, pursuant to the collective bargaining agreement, asserting that truck No. 244 was defective, that it had been improper for him to have been ordered to drive the truck, and that his discharge was therefore also improper. The union, however, found no objective merit in the grievance, and declined to process it.
"'[W]hen an employee makes complaints concerning safety matters which are embodied in a contract, he is acting not only in his own interest, but is attempting to enforce such contract provisions in the interest of all the employees covered under that contract. Such activity we have found to be concerted, and protected under the Act, and the discharge of an individual for engaging in such activity to be in violation of Section 8(a)(1) [of the Act].'"
256 N.L.R.B. at 454 (quoting Roadway Express, Inc., 217 N.L.R.B. 278, 279 (1975)). The NLRB adopted the findings and conclusions of the ALJ and ordered that Brown be reinstated with backpay.
"For an individual claim or complaint to amount to concerted action under the Act, it must not have been made solely on behalf of an individual employee, but it must be made on behalf of other employees or at least be made with the object of inducing or preparing for group action and have some arguable basis in the collective bargaining agreement."
"[e]mployees shall have the right to . . . join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
29 U.S.C. § 157. The NLRB's decision in this case applied the Board's longstanding "Interboro doctrine," under which an individual's assertion of a right grounded in a collective bargaining agreement is recognized as "concerted activit[y]," and therefore accorded the protection of § 7. [Footnote 6] See Interboro Contractors, Inc., 157 N.L.R.B. 1295, 1298 (1966), enf'd, 388 F.2d 495 (CA2 1967); Bunney Bros. Construction Co., 139 N.L.R.B. 1516, 1519 (1962). The Board has relied on two justifications for the doctrine: first, the assertion of a right contained in a collective bargaining agreement is an extension of the concerted action that produced the agreement, Bunney Bros. Construction, supra, at 1519; and second, the assertion of such a right affects the rights of all employees covered by the collective bargaining agreement. Interboro Contractors, supra, at 1298.
NLRB v. Hearst Publications, Inc., 322 U. S. 111, 322 U. S. 130-131 (1944). The question for decision today is thus narrowed to whether the Board's application of § 7 to Brown's refusal to drive truck No. 244 is reasonable. [Footnote 7] Several reasons persuade us that it is.
Neither the Court of Appeals nor respondent appears to question that an employee's invocation of a right derived from a collective bargaining agreement meets § 7's requirement that an employee's action be taken "for purposes of collective bargaining or other mutual aid or protection." As the Board first explained in the Interboro case, a single employee's invocation of such rights affects all the employees that are covered by the collective bargaining agreement. Interboro Contractors, Inc., supra, at 1298. This type of generalized effect, as our cases have demonstrated, is sufficient to bring the actions of an individual employee within the "mutual aid or protection" standard, regardless of whether the employee has his own interests most immediately in mind. See, e.g., NLRB v. J. Weingarten, Inc., 420 U. S. 251, 420 U. S. 260-261 (1975).
the Act, however, and what we must elucidate, is the precise manner in which particular actions of an individual employee must be linked to the actions of fellow employees in order to permit it to be said that the individual is engaged in concerted activity. We now turn to consider the Board's analysis of that question as expressed in the Interboro doctrine.
Although one could interpret the phrase, "to engage in other concerted activities," to refer to a situation in which two or more employees are working together at the same time and the same place toward a common goal, the language of § 7 does not confine itself to such a narrow meaning. In fact, § 7 itself defines both joining and assisting labor organizations -- activities in which a single employee can engage -- as concerted activities. [Footnote 8] Indeed, even the courts that have rejected the Interboro doctrine recognize the possibility that an individual employee may be engaged in concerted activity when he acts alone. They have limited their recognition of this type of concerted activity, however, to two situations: (1) that in which the lone employee intends to induce group activity, and (2) that in which the employee acts as a representative of at least one other employee. See, e.g., ARO, Inc. v. NLRB, 596 F.2d at 717; NLRB v. Northern Metal Co., 440 F.2d 881, 884 (CA3 1971). The disagreement over the Interboro doctrine, therefore, merely reflects differing views regarding the nature of the relationship that must exist between the action of the individual employee and the actions of the group in order for § 7 to apply. We cannot say that the Board's view of that relationship, as applied in the Interboro doctrine, is unreasonable.
of a collective bargaining agreement, and extending through the enforcement of the agreement -- is a single, collective activity. [Footnote 9] Obviously, an employee could not invoke a right grounded in a collective bargaining agreement were it not for the prior negotiating activities of his fellow employees. Nor would it make sense for a union to negotiate a collective bargaining agreement if individual employees could not invoke the rights thereby created against their employer. Moreover, when an employee invokes a right grounded in the collective bargaining agreement, he does not stand alone. Instead, he brings to bear on his employer the power and resolve of all his fellow employees. When, for instance, James Brown refused to drive a truck he believed to be unsafe, he was in effect reminding his employer that he and his fellow employees, at the time their collective bargaining agreement was signed, had extracted a promise from City Disposal that they would not be asked to drive unsafe trucks. He was also reminding his employer that, if it persisted in ordering him to drive an unsafe truck, he could reharness the power of that group to ensure the enforcement of that promise. It was just as though James Brown was reassembling his fellow union members to reenact their decision not to drive unsafe trucks. A lone employee's invocation of a right grounded in his collective bargaining agreement is, therefore, a concerted activity in a very real sense.
"practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions."
"was helpless in dealing with an employer; . . . he was dependent ordinarily on his daily wage for the maintenance of himself and family; . . . if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; . . . union was essential to give laborers opportunity to deal on an equality with their employer."
concerted activities for the purpose of collective bargaining or other mutual aid or protection."
29 U.S.C. § 102 (emphasis added). This was the source of the language enacted in § 7. It was adopted first in § 7(a) of the National Industrial Recovery Act and then, in 1935, in § 7 of the NLRA. See generally Gorman & Finkin, The Individual and the Requirement of "Concert" Under the National Labor Relations Act, 130 U.Pa.L.Rev. 286, 331-346 (1981).
Against this background, it is evident that, in enacting § 7 of the NLRA, Congress sought generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment. There is no indication that Congress intended to limit this protection to situations in which an employee's activity and that of his fellow employees combine with one another in any particular way. Nor, more specifically, does it appear that Congress intended to have this general protection withdrawn in situations in which a single employee, acting alone, participates in an integral aspect of a collective process. Instead, what emerges from the general background of § 7 -- and what is consistent with the Act's statement of purpose -- is a congressional intent to create an equality in bargaining power between the employee and the employer throughout the entire process of labor organizing, collective bargaining, and enforcement of collective bargaining agreements.
right grounded in a collective bargaining agreement, the employee makes that right a reality, and breathes life not only into the promises contained in the collective bargaining agreement, but also into the entire process envisioned by Congress as the means by which to achieve industrial peace.
To be sure, the principal tool by which an employee invokes the rights granted him in a collective bargaining agreement is the processing of a grievance according to whatever procedures his collective bargaining agreement establishes. No one doubts that the processing of a grievance in such a manner is concerted activity within the meaning of § 7. See, e.g., NLRB v. Ford Motor Co., 683 F.2d 156, 159 (CA6 1982); Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 729 (CA5 1970). Indeed, it would make little sense for § 7 to cover an employee's conduct while negotiating a collective bargaining agreement, including a grievance mechanism by which to protect the rights created by the agreement, but not to cover an employee's attempt to utilize that mechanism to enforce the agreement.
initial refusal to do that which he believes he is not obligated to do, might serve as both a natural prelude to, and an efficient substitute for, the filing of a formal grievance. As long as the employee's statement or action is based on a reasonable and honest belief that he is being, or has been, asked to perform a task that he is not required to perform under his collective bargaining agreement, and the statement or action is reasonably directed toward the enforcement of a collectively bargained right, there is no justification for overturning the Board's judgment that the employee is engaged in concerted activity, just as he would have been had he filed a formal grievance.
The fact that an activity is concerted, however, does not necessarily mean that an employee can engage in the activity with impunity. An employee may engage in concerted activity in such an abusive manner that he loses the protection of § 7. See, e.g., Crown Central Petroleum Corp. v. NLRB, supra, at 729; Yellow Freight System, Inc., 247 N.L.R.B. 177, 181 (1980). Cf. Eastex, Inc. v. NLRB, 437 U. S. 556 (1978); NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956). Furthermore, if an employer does not wish to tolerate certain methods by which employees invoke their collectively bargained rights, he is free to negotiate a provision in his collective bargaining agreement that limits the availability of such methods. No-strike provisions, for instance, are a common mechanism by which employers and employees agree that the latter will not invoke their rights by refusing to work. In general, if an employee violates such a provision, his activity is unprotected even though it may be concerted. Mastro Plastics Corp. v. NLRB, 350 U. S. 270 (1956). Whether Brown's action in this case was unprotected, however, is not before us.
labor practice claim. Brief for Respondent 34-42. This argument, however, misses the mark for several reasons. First, an employee who purposefully follows this route would run the risk that the Board would find his actions concerted, but nonetheless unprotected, as discussed above.
Second, the Interboro doctrine does not shift dispute resolution from the grievance and arbitration process to NLRB adjudication in any way that is different from the alternative position adopted by the Court of Appeals, and pressed upon us by respondent. As stated above, see supra at 465 U. S. 828, the Court of Appeals would allow a finding of concerted activity if two employees together invoke a collectively bargained right, if a lone employee represents another employee in addition to himself when he invokes the right, or if the lone employee invokes the right in a manner that is intended to induce at least one other employee to join him. In each of these situations, however, the underlying substance of the dispute between the employees and the employer is the same as when a single employee invokes a collectively bargained right by himself. In each case, the employees are claiming that their employer violated their collective bargaining agreement, and if the complaining employee or employees in those situations are discharged, their unfair labor practice action would be identical to an action brought by an employee who has been discharged for invoking a collectively bargained right by himself. Because the employees in each of these situations are equally well positioned to go through the grievance and arbitration process, there is no basis for singling out the Interboro doctrine as undermining that process any more than would the approach of respondent and the Courts of Appeals that have rejected the doctrine.
Co., 112 N.L.R.B. 1080 (1955). There is no reason, therefore, for the Board's interpretation of "concerted activit[y]" in § 7 to be constrained by a concern for maintaining the integrity of the grievance and arbitration process.
In this case, the Board found that James Brown's refusal to drive truck No. 244 was based on an honest and reasonable belief that the brakes on the truck were faulty. Brown explained to each of his supervisors his reason for refusing to drive the truck. Although he did not refer to his collective bargaining agreement in either of these confrontations, the agreement provided not only that "[t]he Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition," but also that "[i]t shall not be a violation of this Agreement where employees refuse to operate such equipment, unless such refusal is unjustified." See supra at 465 U. S. 825. There is no doubt, therefore, nor could there have been any doubt during Brown's confrontations with his supervisors, that, by refusing to drive truck No. 244, Brown was invoking the right granted him in his collective bargaining agreement to be free of the obligation to drive unsafe trucks. Moreover, there can be no question but that Brown's refusal to drive the truck was reasonably well directed toward the enforcement of that right. Indeed, it would appear that there were no other means available by which Brown could have enforced the right. If he had gone ahead and driven truck No. 244, the issue may have been moot.
of "the Board's special function of applying the general provisions of the Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., 373 U. S. 221, 373 U. S. 236 (1963). As long as the nature of the employee's complaint is reasonably clear to the person to whom it is communicated, and the complaint does, in fact, refer to a reasonably perceived violation of the collective bargaining agreement, the complaining employee is engaged in the process of enforcing that agreement. In the context of a workplace dispute, where the participants are likely to be unsophisticated in collective bargaining matters, a requirement that the employee explicitly refer to the collective bargaining agreement is likely to serve as nothing more than a trap for the unwary.
Respondent further argues that the Board erred in finding Brown's action concerted based only on Brown's reasonable and honest belief that truck No. 244 was unsafe. Brief for Respondent 38. Respondent bases its argument on the language of the collective bargaining agreement, which provides that an employee may refuse to drive an unsafe truck "unless such refusal is unjustified." In the view of respondent, this language allows a driver to refuse to drive a truck only if the truck is objectively unsafe. Regardless of whether respondent's interpretation of the agreement is correct, a question as to which we express no view, this argument confuses the threshold question whether Brown's conduct was concerted with the ultimate question whether that conduct was protected. The rationale of the Interboro doctrine compels the conclusion that an honest and reasonable invocation of a collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his right was violated. See 465 U. S. supra. No one would suggest, for instance, that the filing of a grievance is concerted only if the grievance turns out to be meritorious. As long as the grievance is based on an honest and reasonable belief that a right had been violated, its filing is a concerted activity because it is an integral part of the process by which the collective bargaining agreement is enforced.
The same is true of other methods by which an employee enforces the agreement. On the other hand, if the collective bargaining agreement imposes a limitation on the means by which a right may be invoked, the concerted activity would be unprotected if it went beyond that limitation. See supra at 465 U. S. 837.
In this case, because Brown reasonably and honestly invoked his right to avoid driving unsafe trucks, his action was concerted. It may be that the collective bargaining agreement prohibits an employee from refusing to drive a truck that he reasonably believes to be unsafe, but that is, in fact, perfectly safe. If so, Brown's action was concerted, but unprotected. As stated above, however, the only issue before this Court and the only issue passed upon by the Board or the Court of Appeals is whether Brown's action was concerted, not whether it was protected.
The NLRB's Interboro doctrine recognizes as concerted activity an individual employee's reasonable and honest invocation of a right provided for in his collective bargaining agreement. We conclude that the doctrine constitutes a reasonable interpretation of the Act. Accordingly, we accept the Board's conclusion that James Brown was engaged in concerted activity when he refused to drive truck No. 244. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion, including an inquiry into whether respondent may continue to defend this action on the theory that Brown's refusal to drive truck No. 244 was unprotected, even if concerted.
"[t]he Employer shall not ask or require any employee to take out equipment that has been reported by any other employee as being in an unsafe operating condition until same has been approved as being safe by the mechanical department."
"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
"It shall be an unfair labor practice for an employer -- "
"(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7."
See, e.g., NLRB v. Ben Pekin Corp., 452 F.2d 205 (CA7 1971); NLRB v. Selwyn Shoe Manufacturing Corp., 428 F.2d 217, 221 (CA8 1970); NLRB v. Interboro Contractors, Inc., 388 F.2d 495 (CA2 1967). At least four Circuits share the position of the Sixth Circuit on this question. See, e.g., Royal Development Co., Ltd. v. NLRB, 703 F.2d 363, 374 (CA9 1983); Roadway Express, Inc. v. NLRB, 700 F.2d 687, 693-694 (CA11 1983); NLRB v. Buddies Supermarkets, Inc., 481 F.2d 714 (CA5 1973) (dictum); NLRB v. Northern Metal Co., 440 F.2d 881 (CA3 1971). See also Kohls v. NLRB, 203 U.S.App.D.C. 139, 142-143, 629 F.2d 173, 176-177 (1980) (expressing doubt about the validity of the Interboro doctrine). In Roadway Express, Inc. v. NLRB, 532 F.2d 751 (1976), the Fourth Circuit enforced, without opinion, a decision of the Board applying the Interboro doctrine, Roadway Express, Inc., 217 N.L.R.B. 278 (1975), but in Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304, 308-310 (1980), the court indicated that it remained an open issue whether the Interboro doctrine would be followed in that Circuit.
Respondent argued below that the Board erred in concluding that James Brown was motivated by an honest belief in the factual validity of his claim. That issue, however, is not before us.
The NLRB has recently held that, where a group of employees are not unionized and there is no collective bargaining agreement, an employee's assertion of a right that can only be presumed to be of interest to other employees is not concerted activity. Meyers Industries, Inc., 268 N.L.R.B. 493 (1984). The Board, however, distinguished that case from the cases involving the Interboro doctrine, which is based on the existence of a collective bargaining agreement. The Meyers case is thus of no relevance here.
"the scope of the 'concerted activities' clause in Section 7 is essentially a jurisdictional or legal question concerning the coverage of the Act,"
we need not defer to the expertise of the Board. Brief for Respondent 13. We have never, however, held that such an exception exists to the normal standard of review of Board interpretations of the Act; indeed, we have not hesitated to defer to the Board's interpretation of the Act in the context of issues substantially similar to that presented here. E.g., NLRB v. J. Weingarten, Inc., 420 U. S. 251, 420 U. S. 266-267 (1975) (right under § 7 to have union representative present at investigatory interview of employee). See also Bayside Enterprises, Inc. v. NLRB, 429 U. S. 298, 429 U. S. 302-303 (1977) (definition of agricultural workers).
Section 7 lists these and other activities initially, and concludes the list with the phrase "other concerted activities," thereby indicating that the enumerated activities are deemed to be "concerted." See n 1, supra.
"Collective bargaining is a continuing process. Among other things, it involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract."
Of course, at some point, an individual employee's actions may become so remotely related to the activities of fellow employees that it cannot reasonably be said that the employee is engaged in concerted activity. For instance, the Board has held that, if an employer were to discharge an employee for purely personal "griping," the employee could not claim the protection of § 7. See, e.g., Capital Ornamental Concrete Specialties, Inc., 248 N.L.R.B. 851 (1980).
In addition, although the Board relies entirely on its interpretation of § 7 as support for the Interboro doctrine, it bears noting that, under § 8(a)(1), an employer commits an unfair labor practice if he or she "interfere[s] with, [or] restrain[s]" concerted activity. It is possible, therefore, for an employer to commit an unfair labor practice by discharging an employee who is not himself involved in concerted activity, but whose actions are related to other employees' concerted activities in such a manner as to render his discharge an interference or restraint on those activities. In the context of the Interboro doctrine, for instance, even if an individual's invocation of rights provided for in a collective bargaining agreement, for some reason, were not concerted activity, the discharge of that individual would still be an unfair labor practice if the result were to restrain or interfere with the concerted activity of negotiating or enforcing a collective bargaining agreement.
"no . . . injunction shall prohibit any person or persons, whether singly or in concert, from . . . ceasing to perform any work [or other specified activities]."
29 U.S.C. § 52 (emphasis added).
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE JUSTICE POWELL, and JUSTICE REHNQUIST join, dissenting.
meaning of § 7 of the National Labor Relations Act (Act), 29 U.S.C. § 157, if the right he reasonably and in good faith asserts is grounded in his employer's collective bargaining agreement. [Footnote 2/1] On this view, the reasonable, good faith assertion of a right contained in the collective bargaining agreement is said to be an extension of the concerted action that produced the agreement; alternatively, the reasonable, good faith assertion of the contract right is said to affect the rights of all the other employees in the workforce. See ante at 465 U. S. 829. Thus, if the employer "interfere[s] with, restrain[s], or coerce[s]" the employee in response to the latter's assertion of the alleged contract right, the Interboro doctrine enables the employee to file a § 8(a)(1) unfair labor practice charge with the National Labor Relations Board (Board). See 29 U.S.C. § 158(a)(1). Although the concepts of individual action for personal gain and "concerted activity" are intuitively incompatible, [Footnote 2/2] the Court today defers to the Board's judgment that the Interboro doctrine is necessary to safeguard the exercise of rights previously won in the collective bargaining process. Since I consider the Interboro doctrine to be an exercise in undelegated legislative power by the Board, I respectfully dissent.
"[t]o have conferred upon the National Labor Relations Board generalized power to determine the rights of parties under all collective agreements would have been a step toward governmental regulation of the terms of those agreements."
"[o]nce [the] parties have made a collective bargaining contract[,] the enforcement of that contract should be left to the usual processes of the law and not to the . . . Board."
H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 42 (1947). By basing the determination whether activity is "concerted" on the assertion's ultimate grounding in the collective bargaining agreement, [Footnote 2/3] the Interboro doctrine's extension of the concerted activity proviso transfers the final authority for interpreting all contracts and for resolving all contract disputes back to the Board. This arrogation of power violates Congress' decision to the contrary.
to make unfair labor practice claims out of the contractual disputes themselves. The statutory authority to interpret some contract provisions is not authority to resolve all labor contract disputes. [Footnote 2/4] Congress' decision not to give the Board this broad power indicates that it considered the difference between individual and concerted activity to be a meaningful one. Indeed, when viewed in light of the scheme Congress created for enforcing labor contract rights, the Interboro doctrine turns out to be nothing less than a Trojan horse dressed up in legal form.
degree of statutory coverage to employees participating in that process, the labor laws encourage and preserve the "practice and procedure of collective bargaining." Emporium Capwell Co. v. Western Addition Community Organization, 420 U. S. 50, 420 U. S. 62 (1975). The fact that two employees receive coverage where one acting alone does not is therefore entirely consistent with the labor laws' emphasis on collective action. See NLRB v. Allis-Chalmers Mfg. Co, 388 U. S. 175, 388 U. S. 180 (1967); Republic Steel Corp. v. Maddox, 379 U. S. 650, 379 U. S. 653 (1965).
"day-to-day adjustments in the contract and other working rules, resolutions of new problems not covered by existing agreements, and the protection of employee rights already secured by contract,"
Conley v. Gibson, 355 U. S. 41, 355 U. S. 46 (1957) (emphasis added), are more suitably handled, not by the Board, but by the employees' collective representative and, if necessary, the courts. See supra at 465 U. S. 842-843. The Interboro doctrine is therefore against Congress' judgment as to how contract rights are best vindicated.
Finally, the Interboro doctrine makes little sense when applied to the facts of this case. There is no evidence that employee James Brown discussed the truck's alleged safety problem with other employees, sought their support in remedying the problem, or requested their or his union's assistance in protesting to his employer. He did not seek to warn others of the problem, or even initially to file a grievance through his union. He simply asserted that the truck was not safe enough for him to drive. James Brown was not engaging in "concerted activity" in any reasonable sense of the term, and therefore his employer could not have violated § 8(a)(1) of the Act when it discharged him. The fact that the right asserted can be found in the collective bargaining agreement may be relevant to whether activity of that type should be "protected," but not to whether it is "concerted." The Interboro doctrine is, in my view, unreasonable in concluding otherwise.
several of the Courts of Appeals have concluded, the statutory language can even be stretched to cover an individual who takes action with the proven object of inducing, initiating, or preparing for group action. See, e.g., ARO, Inc. v. NLRB, 596 F.2d 713, 717 (CA6 1979); NLRB v. Northern Metal Co., 440 F.2d 881, 884 (CA3 1971); see also Kohls v. NLRB, 203 U.S.App.D.C. 139, 142-143, 629 F.2d 173, 176-177 (1980). But it stretches the language past its snapping point to cover an employee's action that is taken solely for personal benefit.
See Interboro Contractors, Inc., 167 N.L.R.B. 1295, 1298 (1966), enf'd, 388 F.2d 495 (CA2 1967); see also Bunney Bros. Construction Co., 139 N.L.R.B. 1516, 1519 (1962).
The Court and the Board agree that the Act cannot be read to cover, or to give the Board jurisdiction over, purely personal, though work-related, claims of individual employees. See ante at 465 U. S. 833, n. 10; Brief for Petitioner 16, and n. 9. They also agree that the mere fact that an asserted right can be presumed to be of interest to other employees is not a sufficient basis for labeling it "concerted." See ante at 465 U. S. 829, n. 6; Meyers Industries, Inc., 268 N.L.R.B. 493 (1984).
The Interboro doctrine is especially disturbing in this respect, since it does not require the individual expressly to refer to the contract provision supporting the claim or even to be aware of the existence of the agreement. See ante at 465 U. S. 839-841; accord, 256 N.L.R.B. 451, 454 (1981). One would think that a rule defining "concerted activity" would require the employee to have some idea that he is engaging in it.
The Court rather glibly suggests that, to the extent factual issues raised in an unfair labor practice proceeding have been, or can be, addressed through the grievance process, the Board will defer to that process. See ante at 465 U. S. 838-839. Yet the Court does not discuss why the Board did not defer to that process in this case, where the union determined that there was no objective basis to the grievance. Ante at 465 U. S. 827. Moreover, as I have discussed at some length elsewhere, the Board hardly applies its deferral criteria evenhandedly or consistently. See Schaefer v. NLRB, 464 U. S. 945 (1983) (O'CONNOR, J., dissenting). Finally, the question whether deferral will occur or is appropriate is relevant only if the Board has jurisdiction in the first place, and that is precisely the issue the Court must decide today.
The Board may, of course, require the employees to first seek satisfaction from contractual arbitration and grievance procedures. See William E. Arnold Co. v. Carpenters, 417 U. S. 12 (1974). But that deferral decision can properly be made only after an unfair labor practice is properly filed, which requires a determination whether "concerted activity" is involved in the first instance.


As you may be aware, the Land Court issued two recent decisions that call into question the validity of several titles coming out of foreclosure.
The result of these two decisions is that titles based on foreclosures by an Assignee lender are potentially fatal unless the Assignment in question was executed and held by the foreclosing lender prior to the commencement of foreclosure under M.G.L. c. 244, §14. Foreclosures based on Assignments that were dated after the foreclosure sale were deemed invalid even if the Assignments were "backdated" (i.e., contained an "effective date") prior to the first c. 244, §14 notices.
Accordingly, subject to certain exceptions discussed later in this Bulletin, until further developments in these cases and the law upon which these cases were decided, Stewart Title Guaranty Company is suspending authorization to insure titles derived from foreclosures where the recorded Assignment into the foreclosing Lender is not dated prior to the date of the first publication under c. 244, §14.
The first decision was issued by Judge Long on March 26, 2009, in the consolidated cases of U.S. Bank National Association, as Trustee v. Ibanez (Misc. Case No.384283 KCL), LaSalle Bank National Association, as Trustee v. Rosario (Misc. Case No. 386018 KCL) and Wells Fargo Bank, N.A., as Trustee v. Larace (Misc. Case No. 386755 KCL), 2009 WL 795201 (hereinafter referred to collectively as "the U.S. Bank case" and individually as "Ibanez," "Rosario" and "Larace").
The second decision was issued by Judge Scheier on March 30, 2009, in the case of Federal National Mortgage Association v. Alas (Misc. Case No. 384854 KFS) ("the FNMA case").
In the US Bank case, Judge Long reviewed the foreclosures in each of the consolidated cases with respect to (1) the common issue of whether publishing c. 244, §14 notices in the Boston Globe rather than the Springfield Republican satisfied the requirement of publishing in a "newspaper with general circulation in the town where the land lies" and (2) whether the notices and the foreclosures based thereon were valid under c. 244, §14 where all of the assignments to the foreclosing lenders were recorded after the foreclosure sale but where, in Ibanez, the assignment was dated 14 months after the sale; in Rosario , the Assignment was dated prior to the publications and "in hand and ready for recording at the time of the auction sale" but not recorded until over a year after the sale; and in Larace, the Assignment was executed 10 months after the sale but contained an "effective date" about 2 months prior to the first publication.
While Judge Long found that the publications in the Boston Globe were "good enough to meet the statutory test at the times in question" (i.e., June of 2007), he cautioned that "[t]he drop-off in the Globe's circulation in Springfield between October 24, 2006 and October 23, 2007 . . . suggests that foreclosure notices published subsequent to October 2007 may need to be assessed on a case-by-case basis."
1. The foreclosure in the Rosario case was valid because LaSalle Bank had the Assignment prior to the c. 244, § 14 publications and the foreclosure sale (even though recorded over a year after the sale), was "in fact" the holder of the mortgage at that time and "could have produced proof of that status . . . if asked;"
3. Notwithstanding REBA Title Standard 58, par. 3, the foreclosure in Larace was also deemed invalid because the Assignment was dated after the foreclosure sale despite its recitation of an "effective date" 2 months prior to the first publication.
In the FNMA case, a so-called "fast-track foreclosure" was in issue. In this case, the foreclosure sale took place prior to when the Servicemember's Civil Relief Act ("SCRA") Judgment was entered by the Land Court and the plaintiff sought a declaratory judgment that this did not result in a title defect.
In this case, Judge Scheier found that FNMA was not entitled to relief because the foreclosing party, HSBC, was not the holder of the Mortgage at the time of the foreclosure sale. In this case, MERS, the original Mortgagee, did not assign the Mortgage to HSBC until over a year from the sale. Although the Assignment had an "effective date" of almost 4 months prior to the sale, Judge Scheier determined that "HSBC held the foreclosure sale before it had received any interest in the MERS mortgage" and, therefore, "the foreclosure sale is a nullity..."
Judge Scheier provided FNMA an opportunity to file further pleadings in the case by April 15th. In the US Bank case, Judge Long did not provide the plaintiff banks such an opportunity. As a result of that failure, US Bank and Wells Fargo filed Motions to Vacate, which were heard on Friday, April 17, 2009. While not ruling on the motions, Judge Long re-opened the case for purposes of providing US Bank and Wells Fargo the opportunity to submit, within 30 days, additional evidence on the issue of their status as holder of the mortgage at the time of commencement of the foreclosure.
3. Title is held by an Owner who is refinancing with a Lender which is currently insured under a Stewart Title Loan Policy seeking title insurance with Stewart Title.
Upon further developments in either of these cases, we will keep you informed of any change in our current position.
If you have questions relating to this bulletin, please contact your local underwriting personnel or Stewart Legal Services.


The effect of the Act of June 25, 1910, c. 431, § 32, 36 Stat. 855, in regard to deeds to tribal lands in the Five Civilized Tribes issued after the death of the party entitled was to make the patented lands part of the estate of the nominal party as though the deed had issued during his life; it did not exclude provisions of law otherwise applicable, and if the proper probate court had jurisdiction to make the decree when made, the Act of 1910 simply established the validity of the title.
In 1900, under the Act of May 2, 1890, c. 182, c. 31, 26 Stat. 81, § 3 of Ch. I of Mansfield's Digest of the Laws of Arkansas providing that, where decedent's estate was less than three hundred dollars, it vested absolutely in the widow was in force, and the grantee of the widow obtained good title whether the order of the probate court was made before or after the purchase.
When the question is whether a particular law of Arkansas was or was not put into effect by the Act of May 2, 1890 in the Indian Territory, this Court has jurisdiction to review the judgment of the state court of Oklahoma under § 237, Jud.Code, although if such question were not involved, the construction of the law itself would be a matter of local law, and not reviewable by this Court.
The facts, which involve questions of title to land in Muskogee Creek Nation Indian Territory awarded by the townsite commission and the construction of the laws of descent applicable to the property, are stated in the opinion.
This is a suit to quiet title to a parcel of land in Oklahoma, brought by the children and heirs of Squire Saunders against a purchaser of the land from his widow. The defendant had a decree in her favor in the state court. 37 Okla. 792, 799. The title of the defendant depends upon the effect of a decree of the probate court, made on November 16, 1900, finding that the estate of Squire Saunders did not exceed $300, and ordering and adjudging that the same do vest absolutely in his widow. If valid, it is decided that this decree embraces the land in controversy. Squire Saunders having the possessory right to the lot, which lay in the Town of Muskogee, Creek Nation, Indian Territory, it was awarded to him by the townsite commission. On October 22, 1900, he died intestate. On January 26, 1904, a deed was made by the principal chief of the Muskogee (Creek) Nation, approved by the Secretary of the Interior, purporting to convey the same to him.
"where deeds to tribal lands in the Five Civilized Tribes have been or may be issued . . . to a person who had died, or who hereafter dies before the approval of such deed, the title to the land designated therein shall inure to and become vested in the heirs, devisees, or assigns of such deceased grantee as if the deed had issued to the deceased grantee during life."
to the heir or other party named in the act as purchaser. For other illustrations of heirs not taking as purchasers under statutes, see McDougal v. McKay, 237 U. S. 372; Pigeon v. Buck, 237 U. S. 386; Mullen v. United States, 224 U. S. 448. If the statute under which the above-mentioned probate decree was made was in force when the decree was passed, the later act does not attempt to deprive it of effect, but only establishes the validity of the Saunders title beyond a doubt. Therefore we pass to the consideration of the earlier laws.
"in force at the close of the session of the general assembly of that state of eighteen hundred and eighty-three, as published in 1884 in the volume known as Mansfield's Digest,"
etc. One of these was chapter one, the provisions relating to administration, by § 3 of which, if the estate of the deceased does not exceed $300, the probate court is to make an order that the estate vest absolutely in the widow or children, as the case may be. The state court held that this section was extended over the Indian Territory, whether it was in force in Arkansas or not -- an erroneous principle, as decided in Adkins v. Arnold, 235 U. S. 417; but if the section was in force in Arkansas, the decision may be right in its result. Whether the section was in force is the main question in the case, and as this is, in effect, a question whether the act of Congress adopted it, it may, without much stretching, be regarded as open to review in this Court although, if it were one degree more remote, and concerned the construction of an Arkansas act admitted to be in force, it would be treated as involving only a local law. See Shulthis v. McDougal, 225 U. S. 561, 225 U. S. 571; United States v. Pridgeon, 153 U. S. 48, 153 U. S. 53-54.
life. The minor children take half during minority, but there were no minor children in this case. This section was held to be paramount, so far as it goes, in Winters v. Davis, 51 Ark. 335. But neither the Constitution of Arkansas nor the chapter of Mansfield's Digest (75) dealing with the devolution of homesteads was put in force in the Indian Territory, so we are concerned only with § 3 of chapter one of the adopted laws. So far as it bears upon the present case, we see no reason to doubt that it was in force, its displacement as to homesteads not being material here. If it was in force, it does not matter that the defendant purchased from the widow in 1900, before the decree of the probate court was made. There was nothing in the acts of Congress to prevent it, and no reason appears why the widow's title may not have inured to her grantee, as held by the Supreme court Commission; but that does not concern the plaintiffs if the widow got a good title as against them.
The master to whom the case was referred to take the proof and report his findings of fact and conclusions of law was of opinion that the widow's interest "was purely that of dower," and excluded the decree of the probate court. But he attached it to his report and the decree was considered by the courts, as we have indicated. The plaintiffs contend that thereby they have been prevented from introducing evidence to control the effect of the alleged decree. This is a matter of local practice that does not concern us. It was disposed of by the courts of the state.


text:
Ailene Tackett, 45, Irvine, housekeeper, to Larry Christopher Frymyer, 66, Ravenna, retired.
Amanda Jo Spencer, 29, Irvine, housewife, to Isaac Dewayne Neal, 40, Irvine, factory.
Jennifer Mullins Fike and Ronnie Dale Fike, joint petition for dissolution of marriage.
Doris Maxcine Begley and William Eugene Begley, joint petition for dissolution of marriage.
Beneficial Kentucky Inc. v. Paula Barnes aka Paula D. Barnes, $5,759.29 plus interest and costs, claimed owed.
First Resolution Investment Corporation v. Bobby J. Hall, $9,065.97 plus interest and costs, claimed owed.
Penny Rogers v. Hughie Shane Rogers, petition for dissolution of marriage.
CitiMortgage Inc. v. Casey Rogers and Kendra Rogers, $89,762.77 plus interest and costs and foreclosure, claimed owed.
Asset Acceptance LLC v. David G. Puckett, $6,279.59 plus interest and costs, claimed owed.
Jamie Michelle Moatts v. Roger Thomas Moatts, petition for dissolution of marriage.
Gary Means v. Regina Means, petition for dissolution of marriage.
Commonwealth Financial Systems Inc. v. Lori Canter, $1,492.02 plus interest and costs, claimed owed.
Sherry Barnett and Jonathan Barnett, Amy Sexton and Farrah Willis to Travis Townsend, $8,000, Estill County.
Laverne Tipton to Tammy Elaine Napier, love and affection, Stacy Lane.
Otis Sparks and Teresa Sparks to Joyce Barnes, $75,000, Park Avenue.
Joyce Barnes aka Joyce Dennis Barnes to Commonwealth of Kentucky for the use and benefit of Transportation Cabinet, $123,650, KY 89.
Mary Ruth Howell to Mary Ruth Howell, trustee of the Mary Ruth Howell Revocable Living Trust, to establish a revocable living trust, near Pryse.
Gregory Scott Horn and Kimberly Ann Horn to Virginia Withers and Leslie W. Withers, $88,000, Powell Avenue.
Earl-Ray Neal and Holly M. Neal to Eva D. Collins and Opal M. Lynch, $20,000, lot 22 Stevens Avenue.
Bobby Wayne Puckett, individually and as executor of the estate of Zella Puckett Shepherd, Cecilia Gaye Willis, by Richard L. Fain, special master commissioner to Cecilia Gaye Willis, exchange land to comply with the last will and testament of Zella Puckett Shepherd.
Cecil Plowman and Sharla Plowman to Lee Frank Sadler Jr., $63,000, 2.16 acres, Sand Hill Road.
Federal National Mortgage Association aka Fannie Mae to Lauren Rader, $64,900, Elm Street, Ravenna.

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FFICER BRIAN HUNT, ET AL., Defendants.
J. Michael Seabright Chief United States District Judge.
Before the court is Defendants Hawaii County Police (“HCP”) Officer Brian Hunt (“Hunt”), HCP Sergeant Wakita (“Wakita”), HCP Sergeant Tingle (“Tingle”), HCP Officer Shaine Tavares (“Tavares”), and HCP Officer Kenneth Ishii's (“Ishii”) (collectively, the “HCP Defendants”) Motion to Dismiss pro se Plaintiff Ruth-Ann Springer's (“Plaintiff”) Complaint. For the reasons set forth below, the Motion is DENIED.
On June 8, 2017, Plaintiff filed a “Complaint for Violation of Civil Rights” (“Complaint”) against the HCP Defendants and realtor Lori Henbest (“Henbest”) (collectively, the “Eviction Defendants”), and State of Hawaii Judge Harry P. Freitas (“Judge Freitas”), ECF No. 1, and an Application to proceed in forma pauperis (“IFP Application”), ECF No. 4. On June 23, 2017, Plaintiff filed a Motion for Temporary Injunction. ECF No. 9. On July 11, 2017, this court granted the IFP Application, dismissed the Complaint in part for failure to state a claim, and denied the Motion for Temporary Injunction (the “July 11 Order”). ECF No. 11. The July 11 Order dismissed claims against Judge Freitas without leave to amend, dismissed Plaintiff's conspiracy claim with leave to amend, and determined that the remaining claims against the Eviction Defendants could proceed. Id. at 15-16.
On August 1, 2017, Plaintiff filed a document titled “Complaint: Write of Error is of the District of the Hawaii Federal: Title 42, ” which the court construed as a First Amended Complaint (“FAC”). ECF No. 14. On August 4, 2017, the court dismissed the FAC without leave to amend for failure to state a claim and directed service of the original Complaint against the Eviction Defendants. ECF No. 16.
On November 8, 2017, the HCP Defendants filed the instant Motion to Dismiss. ECF No. 37. The court set Plaintiff's response deadline for December 29, 2017. ECF No. 38. On January 3, 2018, the court ordered Plaintiff to state whether she intended to oppose the Motion to Dismiss and if so, why she failed to meet the December 29, 2017 deadline to file her Opposition. ECF No. 50. On January 5, 2018, Plaintiff filed a “Notice of the Counter Claim of the Stay of the Defendants Motion, ” ECF No. 49, which the court construed as both a response to the court's January 3 Order and an Opposition to the Motion to Dismiss, ECF No. 50. On January 16, 2018, the HCP Defendants filed a Reply. ECF No. 51. On January 22, 2018, Plaintiff filed a “Statement and Proof for Not Dismissing the Defendant's (sic) Hunt, et al. Claims: Case# 17-00269 JMS-KSC.” ECF No. 52. A hearing was held on January 22, 2018.
This action arises from a State of Hawaii foreclosure and eviction, and subsequent criminal proceedings. As alleged in the Complaint, on January 15, 2016, the Eviction Defendants removed Plaintiff from her home on the Big Island of Hawaii pursuant to an expired writ of possession. Compl. at 6 (“3 Officers, 2 Sargent's, [(sic)] and a Real-estate agent, using an old writ of possession that the statute of limitation had run out . . . took possession of my property.”). Hunt allegedly “took down the KAPU sign that was . . . protecting [Plaintiff] on her land.” Id. at 9. The Complaint further alleges that Plaintiff “was home, ” and when Hunt went to move her from her seated position, she “raised both arms and hands in the air and told [O]fficer Hunt, ‘I know you are arresting me. I am cooperating with you. I am not resisting so what do you want me to do.'” Id. at 11; see also id. at 9. Hunt arrested Plaintiff. Id. at 9, 10; see also Id. at 11 (“Officer Hunt made a personal decision to make it a criminal matter.”). Plaintiff was then detained, subject to bail. See Id. at 7 (“I was detained without my consent for violating a statute, I have just been kidnapped.”); see also Id. at 11 (“[T]he prosecutors and Sargent Wakita set the ransom for my liberty . . . [and state court] Judge Freitas confirmed the charges and the ransom[.]”).
Officer Hunt assaulted me . . . tearing my rotator cuff when he grabbed my right arm and jerked me up from where I was sitting. After hand-cuffing me, he picked me up by my hands that were cuffed behind my back, forcing me to bend my body in half to ease the pain in my shoulder joints. I begged him to stop hurting me and that I was not resisting arrest. . . . My arm has limits of motion that cannot be fixed. . . . Also, when Officer Hunt was finger-printing me, he grabbed at my fingers and squeezed hard. I complained because my fingers are very sore and hurt when touched because of my osteoarthritis disfiguration.
Further, at some point during the eviction, Henbest “assaulted me by shoving [me] into the hall wall hard enough to knock the wind from me.” Id. at 10. The Complaint alleges that Henbest had the locks replaced on the home and removed Plaintiff's possessions. Id. “[B]anks and the real estate agent allegedly sold [Plaintiff's] home.” Id. at 9. Subsequently, “people were moved into my home and after the case was dismissed, my property was never returned.” Id. at 11.
The remainder of the Complaint is filled with nonsensical opinions, assumptions, conclusory allegations, and pronouncements. As a result of the foregoing, Plaintiff allegedly suffered severe mental anguish and depression, physical injuries, had a nervous breakdown, lost everything, and became homeless. Id. at 11, 12.
The Complaint asserts 42 U.S.C. § 1983 claims against the Eviction Defendants in their individual capacities only,  for violation of, and conspiracy to violate, Plaintiff's statutory and/or constitutional rights, particularly those protected by the Fourth Amendment. Id. at 4-7, 11. The Complaint further asserts state-law claims for assault and battery, and intentional and negligent infliction of emotional distress. The Complaint seeks (1) compensatory damages for permanent injuries to Plaintiff's shoulder; (2) $2, 785, 750.00 in compensatory damages for the lost property and the toll on Plaintiff's physical and mental health; (3) $6, 913, 002.00 in “actual material losses”; (4) $25, 000, 000.00 per violation (12 violations) of Plaintiff's rights protected by the United States and Hawaii constitutions; and (6) the incarceration of all Defendants for five years, and forfeiture of all they own. Id.
As evidenced by documents publicly filed with the State of Hawaii District Court of the Third Circuit, Puna Division, and attached to the Motion,  a non-judicial foreclosure was conducted against real property at 15-1784 13th Avenue, Keaau, Hawaii 96749 (the “subject property”), resulting in (1) a February 28, 2012 Judgment for Possession in favor of the Federal National Mortgage Association and against Plaintiff (and two others), and (2) a Writ of Possession, effective February 27, 2012. See Exs. A, B, ECF Nos. 37-3, 37-4. The Writ commanded the removal of Plaintiff (and her two co-defendants), and their personal belongings, from the subject property. ECF No. 37-4.
Although not provided by the parties, the court also takes judicial notice of the state-court docket in the underlying foreclosure action which shows that also filed on February 28, 2012 was an “Order Granting Plaintiff's Motion for Summary Judgment and Writ of Possession” (the “February 28, 2012 Order”). See Hawaii State Judiciary's Public Access to Court Information (“Ho'ohiki”), http://hoohiki.courts.hawaii. gov/#/case?caseId=3RC111000287 (last visited Feb. 7, 2018). On March 9, 2012, Plaintiff filed a Motion for Reconsideration of the February 28, 2012 Order, which was granted on July 13, 2012. Id. The July 13 Order states that “[t]he February 28, 2012 Order Granting Plaintiff's Motion for Summary Judgment and Writ of Possession is hereby stricken.” Defs.' Notice, Ex. 1 at 2, ECF No. 55-1. Somewhat confusingly, on December 19, 2012, a “Satisfaction of Judgment for Possession Filed February 28, 2012” was filed that references the February 28, 2012 Order and a March 25, 2012 lockout on the subject property, but not the July 13, 2012 Order. See Ho'ohiki, http://hoohiki. courts.hawaii. gov/#/case?caseId=3RC111000287; see also Defs.' Notice, Ex. 2 at 2, ECF No. 55-2. In short, although the court takes judicial notice of these state-court filings, they are confusing and provide this court with no clear understanding as to the validity of either the Judgment for Possession or Writ of Possession.
And finally, the court takes judicial notice that on February 3, 2016, the County of Hawaii filed a criminal complaint in the State of Hawaii District Court of the Third Circuit, Puna Division against Plaintiff for “Criminal Trespass in the First Degree, in violation of [Hawaii Revised Statutes (“HRS”)] Section 708-813(1)(a)(1), ” and alleging that “[o]n or about the 15th day of January, 2016 . . . RUTH ANN SPRINGER knowingly entered and/or remained unlawfully in a dwelling[.]” ECF No. 37-5.
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for “failure to state a claim upon which relief can be granted.” A Rule 12(b)(6) dismissal is proper when there is either a “‘lack of a cognizable legal theory or the absence of sufficient facts alleged.'” UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
Although a plaintiff need not identify the legal theories that are the basis of a pleading, see Johnson v. City of Shelby, Mississippi, 135 S.Ct. 346, 346 (2014) (per curiam), a plaintiff must nonetheless allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet - that the court must accept as true all of the allegations contained in the complaint - “is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”). And the court need not accept as true allegations contradicted by judicially noticeable facts. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000); Heineke v. Santa Clara Univ., 2017 WL 6026248, at *4 (N.D. Cal. Dec. 5, 2017) (citing Shwarz).
Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer “the mere possibility of misconduct” do not show that the pleader is entitled to relief as required by Rule 8. Iqbal, 556 U.S. at 679.
Because Plaintiff is proceeding pro se, the court liberally construes her Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court also recognizes that “[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013). A court may, however, deny leave to amend where further amendment would be futile. See, e.g., Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to amend for, among other reasons “repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment”).