Cheryl Coudert v. Paine Webber Jackson & Curtis

WEIS, Circuit Judge,

dissenting.

The question here is whether the controversy between the plaintiff and her former employer is one “arising out of the employment or termination of employment,” and is therefore arbitrable. The district court found that it was and I agree. Therefore, I dissent.

One specific matter in dispute is whether the defendant was correct in stating to other employees that the plaintiff was “fired.” She contends the statement was false because she “resigned.” This disagreement over the circumstances of the plaintiff’s departure applies as well to the required notifications that the defendant submitted to various securities exchanges and governmental agencies. The plaintiff’s complaint also alleges that the defendant informed some of her clients that her “departure from Paine Webber is unfortunate,” and intimated that the termination was for cause.

Although these communications took place after the plaintiff’s termination, the district court found that the “underlying factual issues concern the plaintiff’s professional competence and the reasons for her disassociation from Paine Webber. Obviously the evidence will involve to a substantial degree matters which arose during the course of her employment and which reflect directly on the employer-employee relationship. ...”

The majority takes the position that the controversy did not “arise out of” the employment relationship because the challenged communications occurred after the plaintiff’s employment had ceased. The district court, however, reasoned that the controversy “flows from and is predicated upon” the employment and its termination, and therefore arbitration was required.

*83The meaning of “arising out of” is not always self-evident. To a large extent, the proper interpretation depends on the specific situation presented. Thus, policy considerations often determine whether “arising out of” should be given a strict or liberal interpretation.

As the majority concedes, arbitration agreements are favored in the law and are to be broadly construed. The Steelworkers trilogy,1 teaches that all doubts should be resolved in favor of coverage. The Supreme Court repeated that admonition in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., -U.S.-,-, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), and advocated “a healthy regard for the federal policy favoring arbitration.” This policy is further reflected in the United States Arbitration Act, 9 U.S.C. §§ 1-14 (1976), which declares that a written agreement for arbitration in a “contract evidencing a transaction involving commerce .. . shall be valid, irrevocable, and enforceable.” Id. § 2.

The ever-mounting caseload in the courts has lead to increasing discussion of alternative means of dispute resolution, particularly arbitration. The Pound Conference of 1976 advocated an expanded use of arbitration2 and the organized bar has joined in the call through the work of various committees.3

To be sure, none of these factors would justify a court in directing contractual arbitration where the parties had not agreed to that procedure. See United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. at 582, 80 S.Ct. at 1352. If a contract is fairly susceptible of differing meanings, however, it is clear that the courts are to adopt the interpretation that requires arbitration.

The policy favoring arbitration is not diminished because this agreement comes under the regulations of the New York Stock Exchange. That much is obvious from this court’s opinion in Coenen v. R. W. Pressprich & Co., 453 F.2d 1209 (2d Cir.1972). There we acknowledged that the drafters of an Exchange arbitration clause “intended it to be very broad” and designed it to keep disputes between members out of the courts as much as possible. See also O’Neel v. National Association of Securities Dealers, Inc., 667 F.2d 804 (9th Cir.1982); Muh v. Newburger, Loeb & Co., Inc., 540 F.2d 970 (9th Cir.1976).

In Drayer v. Krasner, 572 F.2d 348, 358 (2d Cir.), cert. denied, 436 U.S. 948, 98 S.Ct. 2855, 56 L.Ed.2d 791 (1978), Judge Friendly discussed Exchange Rule 347(b) at some length, and found no incongruity in the arbitration of disputes between members of the Exchange and their employees. There have been some exceptions in clearly defined situations. The case at bar, how*84ever, does not raise the question of preemption by state employee relations law, as in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 94 S.Ct. 383, 38 L.Ed.2d 348 (1973), or present the situation in Ayres v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 538 F.2d 532 (3d Cir.), cert. denied, 429 U.S. 1010, 97 S.Ct. 542, 50 L.Ed.2d 619 (1976), where the dispute centered on the employee’s investments and not his employment status.

The dispute here is a simple defamation case and poses no unusual issues. The plaintiff’s contention that the matter should not be arbitrated because it is a tort case has no validity and requires no extended discussion. Hundreds of personal injury claims are arbitrated every day under the uninsured motorist provisions of standard automobile insurance policies. See also 16 W. Jaeger, Williston on Contracts, § 1918 at 13 (1976) (“Claims arising out of torts and nuisances may be submitted to arbitration.”) 4

The conduct the plaintiff complains about was precipitated by the termination of her employment. The notifications to the various stock exchanges and governmental agencies were part of the termination process, and the explanations to the plaintiff’s customers were expected concomitants to severance of the parties’ relationship. That the plaintiff found the contents of the communications to be offensive does not isolate them from the termination process.

Nor is the dispute removed from the scope of the arbitration rule by the fact that the communications occurred after the plaintiff’s last day of work for the defendant. In Stokes v. Merrill Lynch, Pierce, Fenner & Smith, 523 F.2d 433 (6th Cir.1975), account executives who had resigned from a brokerage firm sued to recover profit sharing units which became vested and payable upon severance of employment. The court directed that the controversy be arbitrated pursuant to New York Stock Exchange Rule 347(b). In that case, the defendant’s conduct in withholding the severance benefits occurred after the last day of employment. Indeed, the benefits did not become due until severance. Nevertheless, the court of appeals had no difficulty in concluding that the dispute arose out of the “termination of employment.”

The same generous construction given to the subject matter of arbitration agreements should apply as well to their temporal limitations. In Nolde Brothers, Inc. v. Local 358, Bakery and Confectionary Workers Union, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977), the Supreme Court held that the parties were required to arbitrate a dispute that arose under the contract but centered on matters that took place after the expiration of a collective bargaining agreement. The Court observed that nothing in the arbitration clause “expressly excludes from its operation a dispute which arises under the contract, but which is based on events that occur after its termination. ... In the absence of some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration duties to be terminated automatically with the contract.” Id. at 253, 97 S.Ct. at 1073. Similarly, in John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), the Court upheld the arbitrability of claims arising after the underlying agreement had expired by its terms.5

*85The arbitration clause in this case is broad in scope. It is intended to cover disputes that are related to termination of employment. The controversy at hand is of the type which often accompanies such an event. I see no need to hedge in the application of arbitration to this case. Under any but the most restrictive interpretation, the dispute should be arbitrated. The liberal standard which the court should apply here compels that result.

I would affirm the order of the district court.

. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

. The Pound Conference focused on the effectiveness of the American judicial system. The major addresses delivered at the conference are reprinted at 70 F.R.D. 83 (1976). See, e.g., Burger, Agenda for 2000 A.D. — A Need for Systematic Anticipation, 70 F.R.D. 83 (1976). Special emphasis was placed on alternative, non-judicial means of dispute resolution. See Sanders, Varieties of Dispute Processing, 70 F.R.D. 111 (1976). Encouragement of. new mechanisms for the delivery of justice, including an increased use of arbitration, emerged as one of the principle recommendations of the conference. See Report of the Pound Conference Follow-Up Task Force, 74 F.R.D. 159 (1976); Erickson, The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty-first Century, 76 F.R.D. 277 (1978); Bell, The Pound Conference Follow-Up: A Response from the United States Department of Justice, 76 F.R.D. 320 (1978).

. The American Bar Association committees include the ABA Action Committee to Reduce Court Costs and Delay, the Special Committee on Resolution of Minor Disputes, and the Special Committee on Alternative Means of Dispute Resolution.

The Chief Justice has also been active in calling for an enlargement of alternative means of dispute resolution. See, e.g., Burger, Isn’t There a Better Way? 68 A.B.A.J. 274 (March 1983).

. Among the plaintiffs claims submitted to arbitration in Drayer v. Krasner was one that the employer had “falsely represented to NYSE and others that [plaintiff] had been terminated for violation of NYSE Rule 405(1),” and the recovery sought “included damages for loss of clientele.” 572 F.2d at 350.

. Old Dutch Farms, Inc. v. Milk Drivers & Dairy Employees Local Union No. 587, 359 F.2d 598 (2d Cir.1966), and Fuller v. Guthrie, 565 F.2d 259 (2d Cir.1977), are not contrary to my position. Those cases construed the disputes to be outside the scope of the arbitration agreements.

Moreover, an additional factor present here is that the plaintiff is presently employed by another member of the New York Stock Exchange. The plaintiff has chosen to continue in the field and thus continues to be bound by the arbitration rule, at least with respect to her present employer. The plaintiff has arguably waived her right to object to arbitration about events which occurred after she ceased work*85ing for one member of the Exchange, but was working for another.