Unpublished Disposition, 899 F.2d 19 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1986)

MONTGOMERY WARD & COMPANY, Plaintiff-Appellant,v.Leo E. YOUNG, Defendant-Appellee.

No. 88-6631.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1990.Decided March 29, 1990.

Before CHAMBERS, FARRIS and NOONAN, Circuit Judges.


MEMORANDUM* 

The district court dismissed the action. We affirm for want of federal jurisdiction.

FACTS

On June 30, 1986, Leo Young was terminated by Montgomery Wards after 28 years of service. The company had in effect what it called, "State of California Employee Wrongful Separation Appeal Procedure." Following this procedure Young filled out "A Request for Review of Separation" form. The result of the review was adverse to him.

Under the Separation Appeal Procedure it was then open to Young to request an appeal to a committee to be composed of three persons chosen by the company plus two current employees chosen by Young. Young found it hard to find current employees willing to serve and decided not to follow this procedure. Instead, he brought suit against Montgomery Ward in the state court.

Montgomery Ward brought this suit seeking to enforce what it termed an agreement to arbitrate. However, the only reference in the Separation Appeal Procedure which would lead to arbitration is a provision that if the appeal committee fails to reach a majority decision within 24-hours and the discharged employee wants to pursue the complaint, the employee must file a request for arbitration.

ANALYSIS

Montgomery Ward argues that the Separation Appeal Procedure is a contract binding upon Young by his continuing to work after the company announced the procedure on October 1, 1985. Montgomery Ward further argues that the Separation Appeal Procedure is the exclusive remedy for a discharged employee and that, taken as a whole, it includes an agreement to arbitrate.

We assume without deciding that Young's continued employment constituted an acceptance of the Separation Appeal Procedure. We are, however, unable to find that it includes an agreement by Young to arbitrate. There is a single contingency under which arbitration is contemplated--impasse in the appeals committee. That contingency did not occur. There is no other basis on which Young could be considered to have agreed to arbitrate.

The parties in fact agreed not to arbitrate. Arbitration could only result if the second step of the dispute resolution process resulted in an impasse. If the committee in the second step resolved the dispute, then the parties agreed that their decision would be final. When the parties agree not to submit a dispute to arbitration, the courts may not impose arbitration upon them. See Contra Costa Legal Assistance Workers v. Contra Costa Legal Serv. Found., 878 F.2d 329, 330 (9th Cir. 1989).

As there is no agreement to arbitrate, so there is no federal jurisdiction. DISMISSED FOR WANT OF FEDERAL JURISDICTION.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

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