*1 sign marketing Appellees’ intent.”31
Br. at 7. But mere possibility the MILWAUKEE TYPOGRAPHICAL UN- vagueness might in this ordinance later be 23, Plaintiff-Appellee, ION NO. guidelines corrected certainly additional INC., NEWSPAPERS, holding
cannot be a basis for it sound con Defendant-Appellant. stitutional. IV, As discussed in Part this ordinance is No. 80-1272. Therefore, impermissibly vague on its face. Appeals, United States Court provide it does not body administrative Circuit. Seventh adequate guide with standards and limit drawing administrators’ discretion in Argued Sept. 1980. “Further, where, here, guidelines. a rule Decided Jan. contains no ascertainable for standards en Rehearing Rehearing En Banc forcement, judicial administrative and re 31, 1981. Denied March only meaningless view can be gesture.” Breier, Bence (7th cert. U.S. 804, 42 (1975).
S.Ct. In addi
tion, the possibility plaintiff itself
appeal or propose guidelines new under the
Administrative Procedures Ordinance does
not plaintiff shift the burden to ensure village adopts
that the rules with ascertain
able standards.
As Grayned, stated in is a basic “[i]t
principle of due that an enactment void vagueness
is for prohibitions if its are clearly defined.” U.S.
S.Ct. at 2298. This ordinance exist and the
ing guidelines to adequately fail define the
items to be regulated, and thus a retailer in
plaintiff’s position is unable to determine Thus,
what the expects law of him. this
ordinance vaguen must be declared void for
ess.32 find Since we void ordinance vagueness, is it reach unnecessary to
plaintiff’s claims, other constitutional express
we opinion no on them.
The order of the district court is
Reversed. II, written, opinion 31. As discussed in Part the Model is a 32. After this was but before released, providing criminal opin- statute. In addition the Sixth Circuit issued its guidelines determining object City whether an in Record No. ion Revolution Inc. v. drug Parma, paraphernalia, requires the Model Act F.2d 916 proof knowledge by of intent Sixth Circuit held a seller that an three ordinances based drug paraphernalia. item will thermore, the Model Act to be unconstitutional. That opinion, be used Fur- here, opinion ap- like our found while the Model Act been “designed unconstitutionally proved courts, use” standard constitutionality some vague. not before this court. *2 bargaining agreement’s jurisdic- language, thereby compelling the
tional system’s about impact. submitted to arbi- *3 29, 1979, tration. On March Arbitrator the Employer Warns decided that while system, entitled to install the VDT it was obligated negotiate with the re- Union garding “impact” system’s upon the com- directed posing work. The arbitrator parties the and to return to days they arbitration after could not agreement. an reach 17,1979, August petitioned On Union the the district for enforcement the pursuant Labor-Management award to the Act, Relations the U.S.C. Act, United Arbitration States 9 U.S.C. answer, 1-14. In lieu of an Employ- §§ er filed a motion dismiss accordance with Federal Rule of Civil Procedure 12(b)(6). reply The Union filed a to the Employer, motion and the turn, reply filed a brief. No motion for summary judgment ever was filed. Christensen, Milwaukee, David Wis., C. defendant-appellant. In January the district court’s Order, Decision and denied the Cornfield, Gilbert A. Cornfield & Feld- man, granted 111., Employer’s motion to dismiss and Chicago, plaintiff-appellee. enforcement of the arbitration award. PELL, Before Judge, SKELTON, Circuit Employer argues appeal district WOOD, Judge,* Senior Judge. Circuit court’s violated due be cause the court converted the PELL, Judge. Circuit motion dismiss into a motion for summa This action arose from a labor ry judgment prior without notice Newspapers, between (Employer), Inc. a parties, affording Employ and without newspaper Milwaukee, publisher in Wiscon- er opportunity evidentiary to file materi sin, and organization its labor representing al in accordance with Al Fed.R.Civ.P. 56.1 the Employer’s composing room employees, ternatively, Employer contends that the Typographical Milwaukee No. Union arbitration award unenforceable because (Union). Employer installed a authority, the arbitrator exceeded his display (VDT) video system terminal in its (D.C.). F.Supp. 1238 departments editorial which introduced preparation, electronic editing, and trans- I. newspaper copy. mission of The Union sought claiming parties vigorously disagree arbitration the intro- duction of applicability the VDT fell within United States Arbitra * Judge Byron Senior G. Skelton of United Fed.R.Civ.P. did raise this due sitting by designation. process argument States Court of Claims is level in the district court stay motion brief petition Judge 1. While the did not pending appeal. The court denied that motion. Reynolds pursuant to set aside order Local Operating Engineers, Int’l Union of this case.2 The to the facts tion Act applies and argues the Act Union 81(a)(3) to theorize that Fed.R.Civ.P. seems poses no bar in assuming that § Even Rules procedure under preempts normal points Employer nonetheless 81(a)(3) stipulates 12(b) and 56. Rule enforcement of the Act allows out that 9§ apply Federal Rules of Civil Procedure only order of an arbitration “[i]f Act proceedings under Arbitration agreed judg- that a agreement have in their proce to the extent that matters upon the court shall be entered ment of the provided for in that Act. dure are not arbitra- pursuant award made ” agreement the labor tion . ... In this case Applicability of Arbitration authorizing express contains no statement in Teamsters recently As this court noted judgment. entry *4 Trucking v. Jefferson 628 Local 135 9, contemplated by agreement § The 1023, 1980), the circuits F.2d 1026 Cir. Common however, In explicit. be need not the Arbitration are divided over Corp., 541 Co. v. Gulf Oil wealth Edison bargaining agree applies to collective Act 1263, 1273 (7th example, Cir. F.2d explicitly 1 of the Act ments because § parties were held that employment ... excludes “contracts of entry to to consented “deemed foreign engaged in or interstate workers 9” by 9 required ... U.S.C. § coverage. Dis the Act’s commerce” from stipulated ar agreement their because circuit, however, have in this trict courts conducted in proceedings bitration would be proceedings 9 to con applied 9 in § U.S.C. with the American Arbitration accordance pursuant made firm arbitration awards (AAA) provide which did Association’s rules Botica v. collective contracts. such consent. Erectors, Inc., F.Supp. Floyd Steel 485 334 v. present (N.D.Ill.1980); Teamsters Local 364 Ruan the contract in the While rules, it Transport AAA does Corp., (N.D.Ind. adopt case not F.Supp. 473 298 does provide 1979). any of the arbitration This court has held that the Act’s decision binding upon both be final and in trans board “shall exclusion relates workers have found such courts portation industries. Pietro Scalzitti Co. parties.”3 Several existed, 81(a)(3) Title complaint sought application not because Rule and fact In its the Union 2. preempted 12(b)(6) or 56. Rules 9 § 301 of the of both the Arbitration Act Labor-Management Act, 29 U.S.C. Relations bargaining contract 7 3. Section its in of motion 185. its brief § dismiss, part, provides, in jurisdiction predicated representatives standing committee two solely Labor-Management upon Relations two and a committee of the representing ... Publisher Act, “[sjince noting is uncontroverted it be the Union shall selected.... by jurisdiction reason of has this Court ques- referred all shall be To this committee 301, allegations respecting the Petitioner’s § regarding this arise tions that or redun- States Arbitration ... are United thereof, alleged any which can- violation Contrary not considered.” dant and need If the commit- be settled otherwise.... however, allegations appeal, agreement ... not reach an tee does reply in Union’s the district court reiterated questions be submitted to shall ... Acts, thereby sought application of both that it arbitration____ board shall The arbitration implicitly rejecting interpretation. Employer’s narrowed representatives of the Publish- of two consist er and two four to select Union, representatives jurisdiction based in its district court who shall act as a fifth member explicitly January enforcement order fifth member of the board. Said chairman upon mentioning 301 the Arbitration § without upon agreed may be manner selected stay denying Subsequently, its order Act. members, the four but the four response pending appeal, in agree upon a fifth members are unable process, the it denied due contention that was member, in accord- be selected ... he shall jurisdiction again predicated § of the American'Arbitration ance with rules 81(a)(3), Although to Rule the court alluded of this board The decision Association.... analysis suggested binding upon that the enforcement award both final shall be appropriate added.) of material (Emphasis because no issue .... 390 936,
language
imply
sufficient
consent to the
U.S.
entry of judgment
(1976) (Rule 42(a) consolidation);
on an arbitration award
In re Hi
under
Derivados, A.,
9. Kallen v. District
Lemos,
Nat’l
y
drocarburos
C.
Hosp.
Union of
Care
Employees,
F.Supp.
(S.D.N.Y.1977) (Rule 4(d)(7)
(2d
1978);
Stravborg
724-26
I/S
complaint);
Warner,
service of
Robinson v.
Converters, Inc.,
Nat’l Metal
500 F.2d
F.Supp.
(D.R.I.1974) (Rule 42(a));
(2d
1974);
426-27
Audi
Un
NSU Auto
Electrical,
In re Int’l Union of
Radio &
Aktiengesellschaft
Motors,
ion
v. Overseas
Workers,
Westing
Machine
AFL-CIO and
Inc.,
F.Supp.
(E.D.Mich.
(S.D.N.
Corp.,
house Electric
ing Accord, contract. Corp. Marine Transit stipulated ion to an extension of time for Dreyfus, v. 166, 284 52 U.S. S.Ct. Employer plead. answer or otherwise 169, (1932) (In 76 upholding L.Ed. 282 responded explicitly under district court’s confirmation of an arbitra- 12(b)(6). Rule expressly The Union answer 8, tion award under admiralty Title 9’s § ed “Reply this motion dismiss with a To provision, the agree- Court found that Respondent’s To Motion Dismiss.” We stipulation ment’s that an award arbitration 12(b) therefore ap conclude that Rule was be “final binding” was sufficient plicable in this case. refute petitioner’s argument that 9§ precluded because the con- granted Because the district court tract language contained no explicitly au- necessarily enforcement of the thorizing the entry judgment). Employer’s 12(b)(6) treated the motion summary judgment. Although motion for The Due Process Claim is appropriate conversion when the Although we find 9 the Arbitration § court determines that no triable issues of applicable case, in this we cannot ac exist, material fact Chicago-Midwest Meat cept argument that Fed.R.Civ.P. Evanston, 278, City Assoc. v. 589 F.2d 81(a)(3) automatically preempts procedures (7th 1978), denied, Cir. cert. 442 U.S. which otherwise would obtain under Rules 946, 2895, (1979), 99 61 S.Ct. 12(b) and Nothing 9 precludes applicable procedure Rule 12 outlines the application of ap these rules. have Courts entirely for conversion which was not fol plied various sections of the Rules of Civil lowed here. Procedure in actions under the Arbitration See, Act. g., Compania e. Espanola de Pe Initially, requires Rule 12 troleos, A., Shipping, S. A. v. Nereus 527 out S. conversion occur when “matters (2d denied, F.2d 966 426 the pleadings presented cert. side are to and not
391 Employer next contends as by the court.” excluded 12(b) pleadings Rules satisfy no outside the even if the exhibits did serts that matters in this presented by failing to the court ever were the district court erred points memoranda It is true that case. give parties notice that it intended not to generally are held and authorities 12(b)(6)motion as one summa treat the pleadings. constitute matters outside judgment. agree While we ry (7th Butler, 525, 528 v. 553 F.2d Macklin into sum 12(b)(6)motion of a conversion McGrath, curiam); 1977) (per v. Sardo accompa motion should mary judgment (D.C.Cir.1952). In this op “a reasonable prior notice and nied however, numer parties submitted of ma existence portunity to establish the collective ous exhibits which include af facts,” the failure controverted terial issue, Warns’ at necessarily does procedure ford such pan the arbitration award and arbitration Meat Chicago-Midwest reversal. mandate thereto, the company el’s dissent members’ F.2d Evanston, supra, City v. Assoc. related to a prior award which Solomon ex discloses the record 282. Where parties, and dispute between the similar issues, fact unresolved material istence to the arbitration various letters relevant they constitute proceedings. These exhibits represent where pleadings sufficient to matters outside the controverted specific have submitted would 12(b)(6) a motion for convert a motion into trial court issues to factual material summary judgment.4 Affidavits “as such we opportunity, given the been they had required where ... are not indispensably summary judgment have to find would complaint a ... exhibits annexed to Jenkins, Choudhry v. inappropriate. par the contention of demonstrate that Cir.), cert. F.2d something from the bare- ty is different 54 L.Ed.2d allegations.” Bradford bones formal Butler, supra, 553 F.2d (1977); Macklin School District No. *6 disputed potential no But where at 528. 1966), v. (4th quoting Cir. State Smoot exists, summary a issue of fact material 525, F.2d 528 Farm Mut. Auto. Ins. 299 though disturbed even judgment will not be See, (5th g., General Guar. Cir. e. disregarded procedure district court Parkerson, 821, (5th Ins. Co. v. 369 F.2d 823 Chicago- which should have been followed. Scott, 1966) (exhibits); Cir. v. 436 Pintozzi Evanston, 375, (7th 1970) (exhibits); City Assoc. F.2d 378 n.3 Cir. Meat Midwest States, 366, Consequently, the 367- at 282. Smith v. United 362 F.2d F.2d supra, 589 Serv., (9th 1966)(exhibit); Gas due 68 Cir. Oahu resolution of the Resources, Inc., F.Supp. material depends upon any Inc. v. Pacific 460 whether claim (exhibits and 1978) 1359, (D.Hawaii 1364 which was disputed issue existed factual itself, tables). either evident from record infidelity to this argues words manifest an in Macklin v. arbitrator’s 4. The defendant that dicta v. Miscella Butler, n.1, supra, preclude obligation.” W. at 528 F. Woolworth Co. 553 F.2d 781, Union, treating 629 court from exhibits attached to Local ever neous Warehousemen's pleadings. 1204, (7th 1980); Co. as matters outside the Amoco Oil memorandum 1215 Cir. F.2d Union, disagree. Oil, such broad We language, Macklin did not use Int’l & Atomic Workers Chemical merely 1288, (7th 7-1, Inc., stated the memoran but 548 F.2d 1293-94 Local Cir.), 1697, accompanying 905, submitted dum and documents 97 S.Ct. cert. 431 U.S. requirements Moreover, in that case not meet the (1977). did the “deter 52 389 L.Ed.2d primarily 56(e). The Macklin court was Rule dissatisfied with the unsworn nature memorandum miss. was not or not the Board exceeded mination of whether of the authority making in the Award must its support in motion to dis by of the to the comers reference four made instrument in Macklin of the exhibits nature constituting agreement between opinion. set out in that Union, Transp. parties.” v. United Gibbons present 838, (N.D.Ill.1978). submitted F.Supp. In the documents It is diffi 462 844 upon evidence as exhibits constituted the basic which the court was bound to resolve the its of this case. imagine and more reliable to documents cult mer of the controver the determination relevant to are is well settled that courts It sy the com to those exhibits attached than strictly reviewing arbitration awards limited plaint motion to of the and brief (1) draws its to the award determine case. dismiss in this (2) whether “the from the essence 392 VDT system’s impact
which the could adverse have submitted if composing given opportunity. employees room “undisputed” could be rebutted. The issue before the district The Employer alleged has not court, discussed in separately detail here specific disputed factual issues sufficient to inafter, was whether or not the arbitrator preclude summary judgment in its brief on exceeded the scope when authority he Nor, appeal. though even explicitly asked, determined that the Employer had a con did the Employer reveal the existence of duty tractual sys over the VDT any such issues in argument. oral tem’s “impact.” To the apparent allegations extent of disputed factual is degree impact sues is at all relevant in which the this Employer might have' case, it would presented question be a to be trial resolved given court arbitrator, by assuming opportunity arguendo were in fact submitted to that he had authority impose in the duty bar brief in support of gain impact.5 over stay motion Judicial review of pending appeal. There the Employer asserted determining arbitration award limited to “had given the Court (1) some indication whether the award draws its essence intent to make a final disposition (2) of this from the contract and whether “the case, respondent supplied would have affi infidelity arbitrator’s words manifest an davits directly (1) controverting the conten obligation.” F. W. Co. v. Woolworth tion that there was ‘impact’ adverse Union, Miscellaneous Warehousemen’s composing employees caused (7th Local introduction of the VDT [termed Oil, 1980); Amoco Oil Co. v. Chemical & ‘undisputed’ by the (2) district court] Union, Atomic Workers Int’l Local 7 - allegation of ... the Petition that sixty Inc., (7th Cir.), F.2d cert. days of negotiations place pursuant took to denied, part 3 of the Warns (Footnote award.” (1977). L.Ed.2d Consequently, Int’l omitted.) Operating Engineers, Union of Local Union responded The district to the first Morse, Inc., A. v. Carl by stating contention that the court’s “use reasoned that the this court perhaps unfor- ‘undisputed’ word complained pro- employer tunate, impact in any but case the issue was partook ceedings below of the nature of a the arbitrator’s and not one within summary judgment, motion for but de- jurisdiction, Court’s was decided the ar- prived opportunity present it of the adversely respondent, bitrator *7 affidavits in of defenses in subject by not to revision the Court.” opposition to arbitration. We have as- Secondly, the court reasoned that its order sumed, purposes decision, of the required “merely parties comply to the positions can be ade- employer’s that the paragraph forthwith 3 of the award with up by sufficient quately backed evidence degree to finding and did not make a as the genuine of to issues fact. But create compliance been already of which had those issues are to by be resolved the by achieved. Thus order not the did arbitrator, by not the court. Whether accept petitioner’s terms the claim.” The court to invited the move the under summary judgment procedures or court for a clarification of its order. upon petition to compel arbitration un- der Act, the United States Arbitration to the this ease allow
Remanding open the issues allegations judicial would these Employer to assert considera- tion are limited rarely or not It factual. Here is irrelevant be futile. they questions law, raise only of of the characterization .... court’s the district degree impact degree impact Even if the of had been an of court, by purview imposition system issue within the the of the district caused of VDT is genuine disputed is well even is- not settled that not material to whether or a contractual preclude provision summary judg- of fact will sues not existed the contract from which they legal imposed duty ment unless to could have are material is- the arbitrator Lund, impact. bargain sues in over the case. Terket v. words manifest an When the arbitrator’s Employ- allegation which second obligation, to this courts have infidelity raised, days of sixty er would of enforcement no choice but refuse place, taken had not in fact negotiations the award. significance on have no likewise would the award. of v. Enter- enforcing America order United Steelworkers court’s 593, 597, parties comply Corp., Wheel & Car merely prise ordered the court (1960). award L.Ed.2d the arbitrator’s Paragraph of with negotiate for directed the which authority to enter The arbitrator’s if arbitration return to and then sixty days award, derives from any, 2 of his Part agree- to reach unable parties were of 4 of the collective process” “new clause find that did not ment. The provides, in agreement which bargaining sixty with the complied already parties had part, that relevant bargaining directive. days introduction into In the event of the proc- due we find Because process, Composing Room work merit, reach we without to be ess claim equipment or which functions machinery district not of, of whether for, issue or evolution as a substitute arbitra- finding that by correctly processes typecasting ruled typesetting and by authority his exceed date this contract tor did that were in use at the the award. effective, questions enforcement all concerned ordering became operation, comple with the method II. retraining of required or the ment of men of his Arbitrator Part 2 shall be determined employees affected Warns found that “the introduction of the Committee, ....7 Standing the Joint system, technological Hendrix [VDT] process” added.) The “new (Emphasis change, job impact sufficient which explicitly questions limits clause Composing Room as to war elements the event of to arbitration in be submitted duty imposition of a rant a substitute the introduction of A impact.”6 about such determination of (2) complement of (1) operation, method of whether or not the arbitrator exceeded retraining. (3) The district court men and authority reference to the must made limitations, but as acknowledged these because, Supreme Court has examination, sumed, that a di without ruled, “impact” fitted bargain over rective interpretation an arbitrator confined to categories.8 within these bargain- application of the collective impact Negotiating over the VDT ing agreement; he does not sit to dis- employees would composing his own pense justice. brand industrial bargaining range of include over a broad guidance He may of course look for from to, issues including, items but not limited legitimate sources, award many yet his termination, layoff, bo involuntary such from its essence it draws long as only so A directive to nuses and loss overtime. agreement. *8 award, 8. The court concluded that propriety which Part The of 6. right respondent to introduce the. The the concedes that the confirmed contract appropriate requires negotiation system work and to “make or VDT arbitration over the assignments,” operation, complement Union con- is issue. The not at method of the of men required, Arbitra- retraining was within the entire award tends that or the of em- affected agrees authority. ployees arising Composing tor Warns’ from new Room appropriate, but technology. compos- Part of the award that What constitutes “new validity 3. ing technology” Parts and the of contests is a of matter contract interpretation for the arbitrator and not for Standing 7. If is the Joint Committee unable this court having decide. Once decided pro- agreement, 7 of the reach an technological that change in the Editorial De- vides that the shall be submitted partment spirit was included within the of supra, arbitration. See note 3. phrase, Arbitrator Warns was entitled to agree “parties 5 establishes Section impose remedy provided for in the con- obligation each to the complete of change tract when such occurred. expressed herein.” other in range of issues For bargain this broad herein, over reasons stated the judg- jects negotiation into which were not ment granting items enforcement of Parts 2 and contemplated by process” clause 3 of the “new the arbitration award is reversed. bargaining contract. Even against of the collective Costs plaintiff-appellee. general categories, the most of the three REVERSED. clearly to how operation, method of refers On Rehearing be run is not a catchall will In its rehearing petition, the Union imposes term which a about duty expressed uncertainty regarding effect by the new anything conceivably affected court’s particu- decision this Part 2 technology. Consequently, because larly whether the permits decision further does not draw its the arbitration award arbitration pursuant award, to Warns’ contract, be en essence from the it cannot future arbitration See, Electric, re- Inc. g., City forced. e. garding the VDT system begin must anew. Local Union Int’l Brotherhood of Elec This clearly invalidated both Parts 2 Workers, trical and 3 of Thus, the Warns’ award. 894, 96 Cir.), cert. S.Ct. Warns’ award contains no valid bargaining (1975) (court refused en directive which require would bargaining or directing forcement arbitration award further arbitration pursuant particu- to that negotiate rate of a travel lar award. allowance au because the award was not agree thorized the collective On consideration of petition ment.) rehearing rehearing suggestion en acknowledged district court cause filed in the above-entitled banc making contention that “in Milwaukee No. Typographical Union award, part Arbitrator Warns relied plaintiff-appellee, majority1 judges policies Labor-Manage certain banc, rehearing have voted to deny en ment Relations Act and on the decisions of all of the judges original panel on the actions, other arbitrators similar rather deny rehearing. Accordingly, voted to basing solely than his award on the lan IT aforesaid IS ORDERED guage the contract at issue.” The court be, same is rehearing and the petition Wheel, responded by Enterprise quoting su hereby, DENIED. pra, proposition ambiguous for the that an opinion accompanying an arbitration award prohibit
will not enforcement of the Wheel,
Enterprise
supra,
gain “impact” related matter. Judge Judges Swygert
1. Chief Fairchild and Cudahy granted would have the en banc rehearing request.