UNITED STATES POSTAL SERVICE, PLAINTIFF-APPELLEE, V. NATIONAL
ASSOCIATION OF LETTER CARRIERS, AFL-CIO, DEFENDANT-APPELLANT.

   No. A-820

   In the Supreme Court of the United States

   October Term, 1986

   On Appeal From the United States Court of Appeals for the District
of Columbia

   Application to Recall and to Stay Mandate

   Pursuant to 28 U.S.C. 2101(f) and Rule 44 of the Rules of this
Court, the Solicitor General, on behalf of the United States Postal
Service, respectfully moves for a recall and stay of the mandate of
the United States Court of Appeals for the District of Columbia
Circuit.  The Solicitor General has authorized the filing of a
petition for a writ of certiorari.  A petition will be filed on or
before July 8, 1987.

   Like United Paperworkers International Union v. Misco, Inc., cert.
granted, January 12, 1987, No. 86-651, this case involves the question
whether public policy precludes enforcement of a labor arbitrator's
reinstatement order (see W. R. Grace & Co. v. Rubber Workers Local
759, 461 U.S. 757, 766 (1983)).  Here, the order runs against a public
employer, the Postal Service, charged by statute with the obligation
promptly, reliably, and efficiently to carry out its mission -- the
delivery of the mails (39 U.S. 101, 403, 1001).  The arbitration award
directs the Postal Service to reinstate a letter carrier who was
discharged for, and criminally convicted of, failing to deliver more
than 3,500 pieces of mail.  The court of appeals, in an opinion dated
February 13, 1987, nevertheless held that enforcement of the award
does not violate public policy (Appendix A, infra).  On April 9, the
court denied the government's petition for rehearing (Appendix B,
infra).  On April 24, the court refused to stay its mandate (Appendix
C, infra).  The mandate issued April 28.

                               STATEMENT

   In 1984 police and postal inspectors made a lawful search of the
personal automobile of letter carrier Edward Hyde.  They found more
than 3,500 undelivered pieces of mail addressed to residents on his
delivery route and elsewhere.  Some of the mail contained commercial
and United States Treasury checks;  some had been delayed more than a
year.  See Appendix D, infra, 2.  Mr. Hyde pled guilty to unlawful
delay of the mail by a postal employee, in violation of 18 U.S.C.
1703, and was sentenced to 18 months' probation, a condition of which
was that he complete a rehabilitation program for compulsive gamblers
(ibid.).

   The Postal Service discharged Mr. Hyde for his criminal dereliction
of duty.  The National Association of Letter Carriers filed a
grievance on Mr. Hyde's behalf and ultimately sought arbitration.  The
arbitrator ordered reinstatement of Mr. Hyde without back pay after a
60-day medical leave of absence.  Appendix E, infra, 10.  Although
stating that the question presented was whether Mr. Hyde's removal was
for "just cause," the arbitrator refused to consider Mr. Hyde's
unlawful possession and delay of mail in themselves sufficient.
Rather, while acknowledging that he was unable to foretell the
prospects of Mr. Hyde's rehabilitation (id. at 9), that "(t)here is
the threat of recurrence of misconduct" (ibid.), and that he was not
persuaded that Mr. Hyde could yet return to work (ibid.), the
arbitrator ordered Mr. Hyde's reinstatement (after 60 days) because he
thought reinstatement was necessary to Mr. Hyde's rehabilitation:  "if
any reasonable hope exists for the rehabilitation of (Mr. Hyde) and
the returning of him to the work place, no one should deny him this
opportunity" (id. at 7).

   The Postal Service filed suit in the district court seeking to set
aside the award as contrary to public policy (see W.R. Grace & Co. v.
Rubber Workers Local 759, 461 U.S. at 766).  The district court agreed
with the Service (Appendix D, infra;  631 F. Supp. 599, 600 (D.D.C.
1986)).  Following the First Circuit decision in United States Postal
Service v. American Postal Workers Union, 736 F.2d 822 (1984)
(reinstatement of a postal employee who admitted embezzling postal
funds violates public policy), the district court concluded (Appendix
D, infra, 3-4) that the award ordering reinstatement of Mr. Hyde
violates the public policy requiring a reliable and efficient postal
service.  The court noted that it would "not lightly discard the
compassionate conclusions of the arbitrator" (id. at 4), but explained
(id. at 3 (emphasis in original;  footnote omitted)) that Mr. Hyde

         violated a public trust by failing to perform his own primary
      duty, viz., properly delivering the mail entrusted to him, and
      his conduct does no less mischief to the operation of the postal
      system simply because it originates in deficits of character
      arguably more forgiveable than cupidity.  The inexorability of
      the mails, upon which literally millions depend daily, is
      equally compromised whether postal workers are derelict in their
      duties for reasons of avarice, indolence, or distractive vices
      such as gambling.  The public policy which must prevail in such
      cases, when a choice must be made, is that which gives best
      assurance of an efficient and reliable postal service, and that
      policy is not one of deference to arbitral automony in
      individual grievance cases, no matter how conscientiously the
      arbitrator may have sought to match the penalty to the
      culpability of the offender.  The Postal Service must retain the
      ability to remove postal employees it does not fully trust from
      positions vulnerable to breaches of trust;  the mails are simply
      too important to the country to make them dependent upon the
      vicissitudes of rehabilitation of a single letter carrier.

   The court of appeals reversed (Appendix A, infra;  810 F.2d 1239
(1987)).  In Northwest Airlines, Inc. v. Air Line Pilots Association
International, 808 F.2d 76 (D.C. Cir. 1987), petition for certiorari
filed, March 26, 1987, No. 86-1548, and American Postal Workers Union
v. United States Postal Service, 789 F.2d 1 (D.C. Cir. 1986), the
court of appeals had held that an arbitrator's award may be set aisde
as contrary to public policy only if the award itself violates
established law or seeks to compel unlawful conduct.  The court
reaffirmed that view in this case (Appendix A, infra, 3), while
acknowledging (id. at 4 n.4) that its approach was in conflict with
that of the First Circuit in United States Postal Service v. American
Postal Workers Union, supra.  The court found no legal proscription
against the reinstatement of Mr. Hyde (Appendix A, infra, 3-4) and
accordingly remanded with instructions to enforce the arbitration
award.

               REASONS FOR RECALLING AND STAYING MANDATE

   A stay pending appeal should be granted where "there is a
'reasonable probability' that four Justices will consider the issue
sufficiently meritorious to grant certiorari," where "there is a fair
prospect that a majority of the Court will conclude that the decision
below was erroneous," and where there is "a demonstration that
irreparable harm is likely to result from the denial of a stay."
Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in
chambers).  Accord, Schweiker v. McClure, 452 U.S. 1301 (1981)
(Rehnquist, J., in chambers).  In a "close case it may be appropriate
to 'balance the equities' -- to explore the relative harms to
applicant and respondent, as well as the interest of the public at
large." Rostker v. Goldberg, 448 U.S. at 1308.  This application
satisfies these standards.

   1. This case presents an important question regarding the scope and
application of the rule that a court may, indeed must, set aside an
arbitration award under a collective bargaining agreement when its
judicial enforcement would be contrary to public policy (W.R. Grace &
Co. v. Rubber Workers Local 759, 461 U.S. at 766) (if a labor contract
as interpreted by an arbitrator "violates some explicit public policy,
we are obliged to refrain from enforcing it")).  The court of appeals
interpreted this public policy doctrine as applying only when the
arbitration award compels unlawful conduct or when its enforcement
would violate positive law.  There is a conflict among the courts of
appeals on whether the doctrine is thus restricted to positive-law
violations (e.g., E.I. DuPont de Nemours & Co. v. Grasselli Employers
Independent Ass'n of East Chicago, 790 F.2d 611 (7th Cir. 1986)
(disagreeing with D.C. Cir. view);  United States Postal Service v.
American Postal Workers Union, supra (1st Cir.) (same);  Amalgamated
Meat Cutters, Local 540 v. Great Western Food Co., 712 F.2d 122, 124
(5th Cir. 1983) (same)).  This Court has granted the petition for a
writ of certiorari in United States Paperworkers International Union
v. Misco, Inc., supra, which presents the question whether the
restrictive view is correct.

   If this Court in Misco rejects the District of Columbia Circuit's
restrictive view of the public policy doctrine, the decision of the
court of appeals in this case cannot stand.  At the very least, the
decision will have to be vacated and the public policy question
reconsidered.  Accordingly, a majority of the Court is likely, at a
minimum, to decide to hold the petition in this case for Misco.

   2. We will urge in our petition, and we think four members of this
Court are likely to decide, that the decision of the court of appeals
in this case warrants review independent of Misco.  In W.R. Grace &
Co. v. Rubber Workers Local 759, 461 U.S. at 766 (citation omitted),
this Court stated that, when the public policy doctrine is invoked,
the public policy "must be well defined and dominant, and is to be
ascertained 'by reference to the laws and legal precedents and not
from general considerations of supposed public interest.'" This case
involves a public employer, the Postal Service, with a public mission
defined by statute:  the Service "shall provide prompt, reliable, and
efficient services" in delivering the mail (39 U.S.C. 101(a);  see
also 39 U.S.C. 101(e), 403(a) and (b)(1), 1001(e)(2), (3), and (4)).
This statutorily rooted public obligation is necessarily implicated by
any Postal Service action, including compliance with an arbitral
reinstatement order, that threatens to undermine its mission.  By
contrast, private employers, like the one involved in Misco, do not
ordinarily operate under such a statutorily based public obligation
respecting the conduct of their business.  /1/

   For this reason, the scope of the public policy doctrine as applied
to public sector employers like the Postal Service raises a question
distinct from the private-sector issue presented in Misco;  and as we
explain more fully below, even if the Court were to adopt a
restrictive view of the public policy doctrine in the Misco context, a
different result would be required here.  Moreover, the courts of
appeals are pointedly in conflict on the particular issue presented in
this case -- the scope of the public policy doctrine as applied to the
Postal Service in particular.  Compare Appendix A, infra (decision
below) with United States Postal Service v. American Postal Workers
Union, supra (1st Cir.).  In addition, the issue here is of obvious
importance to federal government employers generally, since the Postal
Service's statutorily rooted public mission has parallels throughout
the government, as does arbitration under public section collective
bargaining agreements (see 5 U.S.C. 7121).  Therefore, it is likely
that four Justices will grant the petition for a writ of certiorari
that the Solicitor General has authorized in this case.

   3. Whatever the result in Misco, the decision of the court of
appeals is erroneous, both in its analysis and in its result.  In a
public sector case like this, even if not in a private sector case
like Misco, the court of appeals' restrictive view of the public
policy doctrine is wrong.  Further, the arbitration award in this case
violates the public policy embodied in the statute defining the Postal
Service's mission.  Accordingly, even aside from the possibility that
the decision below will be vacated and the case remanded for
reconsideration in light of this Court's ruling in Misco, it is likely
that this Court will not permit the decision below to stand;  indeed,
it is likely that this Court, or the court of appeals on remand with
instructions to undertake a proper analysis, will hold that the
arbitration award in this case must not be enforced.

   a. The court of appeals summarily concluded that, because the
hiring of Mr. Hyde would not be clearly proscribed by positive law, no
statutorily rooted public policy is violated by enforcing the
arbitrator's award ordering his reinstatement.  That conclusion is
wrong because it ignores the statutorily rooted public policy in a
reliable and efficient Postal Service, a policy that plainly meets the
W.R. Grace & Co. requirement (461 U.S. at 766 (citation omitted)) that
it be "well defined and dominant, and * * * ascertained 'by reference
to the laws and legal precedents and not from general considerations
of supposed public interests.'"

   The Postal Service has a public mission, defined by statute, which
is not subject to dilution by any collective bargaining agreement or
arbitrator's decision under such an agreement.  Hence, although the
Service is permitted to adopt arbitration as part of its ordinary
means of resolving employee grievances (39 U.S.C. 1206(b)), that
authority does not allow the Service to waive its statutory obligation
to fulfill its public duties.  As an administrative agency, it must
retain the authority to carry out its statutory mandate to provide
reliable and efficient mail delivery services, and it is entitled to
deference in determining how to do so.

   These two statutorily based policies -- one promoting the finality
of arbitration when it is selected by the Service, the other requiring
the public employer to carry out its public responsibilities -- are in
tension in some instances.  The resolution of the tension between
those two statutory policies, like any accommodation of two competing
but partly overlapping statutes, is a task for the courts.  Certainly,
when the Postal Service selects arbitration as its ordinary and
presumptively final means of resolving personnel grievances, the
courts should resolve the tension by generally holding the Service to
that commitment as itself a reasonable interpretation of its statutory
mandate.  But the judicial responsibility is to accommodate both of
the competing statutory policies, not to permit one simply to displace
the other.  Accordingly, judicial enforcement of an arbitral award is
improper in those extreme instances when the award is inconsistent
with the Service's own reasonable determination of the requirements of
its mission.

   Although arbitration in the Postal Service bears strong
resemblances to private-sector arbitration, there are also important
differences.  For example, unlike their ordinary private-sector
counterparts, Postal Service (and other federal government) employees
have no right to strike (5 U.S.C. 3333, 7311;  39 U.S.C. 410);  thus,
the alternative to arbitral finality is not the stark economic warfare
that it typically is in the private sector (see Gateway Coal Co. v.
United Mine Workers, 414 U.S. 368, 377-379 (1974)).  Moreover, as
explained above, more than mere contractual obligations are relevant
to a Postal Service arbitration.  An arbitrator who is applying only
contractual provisions between private parties has broad leeway to
fill in and to elaborate those provisions according to the "common law
of the shop" (United Steelworkers of America v. Warrier & Gulf
Navigation Co., 363 U.S. 574, 581 (1960);  see also Gateway Coal Co.
v. United Mine Workers, 414 U.S. at 377-379).  When statutory duties
of a public employer overlay any contractual agreements, the contract
and the law of the shop cannot be the last word.  Rather, those public
duties require judicial interpretation:  the meaning in a given case
of the Postal Service's public mission, like any question of public
policy, "is ulitmately one for resolution by the courts" (W. R. Grace
& Co. v. Rubber Workers Local 759, 461 U.S. at 766).

   In short, whatever the scope of "public policy" review of
private-sector arbitration awards, the public policy doctrine as
applied to the Postal Service (and other public employers with
statutorily rooted public duties) requires that courts review claims
by the Service that its statutorily based public trust is threatened
by a particular arbitration award.  /2/ The court of appeals wholly
failed to make this inquiry.

   b. The court of appeals erred not only in refusing to undertake
such an analysis (which will be reason enough for the Court to vacate
the decision below).  The result it reached is also erroneous.  We
think there can be only one conclusion of a proper analysis of this
case -- that the arbitration award at issue here violates public
policy.  Accordingly, there is a fair prospect that either this Court
or the court of appeals on remand will affirm the district court's
judgment vacating the arbitrator's reinstatement order.

   This case involves a simple determination by the Postal Service
that an employee who commits an offense that effects an egregious
impairment of the fundamental duty of the Postal Service -- to deliver
the mails -- must be discharged.  Mr. Hyde failed over the course of a
year to deliver more than 3,500 pieces of mail, including Treasury
checks, on which numerous individuals may vitally depend.  Whatever
the prospects for rehabilitation of Mr. Hyde in particular, the
Service has determined that, for the sake of its mission as a whole,
it cannot have in its employment an individual who has committed such
an offense against the Service;  nor can it place its patrons at risk
by restoring Mr. Hyde to his position of public trust.  As the
district court stated (Appendix D, infra, 3), "(t)he Postal Service
must retain the ability to remove postal employees it does not fully
trust from positions vulnerable to breaches of trust;  the mails are
simply too important to the country to make them dependent upon the
vicissitudes of rehabilitation of a single letter carrier." In this
case, a general policy of deference to arbitral awards cannot override
the need, as the Postal Service determines it in the exercise of its
delegated responsibility, to protect the basic public mission of the
Postal Service.  The arbitration award rejecting the Service's
determination of how to fulfill its public obligations in this case
must therefore be set aside.

   4. The balance of individual and public harms justifies a recall
and stay of mandate pending our filing and this Court's disposition of
a petition for a writ of certiorari.  That is so even though the
reinstatement of only one employee is directly involved in this case.
The Chief Justice recently granted a recall and stay of reinstatement
of a single employee, a pilot, in Northwest Airlines v. Air Line
Pilots Association, 808 F.2d 76 (D.C. Cir. 1987), mandate recalled and
stayed pending filing and disposition of a petition for certiorari,
February 20, 1987, No. A-595, petition for cert. filed, No. 86-1548
(Mar. 26, 1987).  Although no similarly direct threat to human lives
is present here, the same course should be followed.

   Mr. Hyde committed a criminal offense that directly and seriously
impaired the fundamental mission of the Postal Service:  he prevented
the delivery of more than 3,500 pieces of mail, including Treasury
checks, some for more than a year.  His reinstatement, even
temporarily, would work an irreparable injury on the ability of the
Postal Service to insist, without qualification, that employees' gross
breaches of their public trust, with a substantial actual impact on
postal patrons, will not be excused.  The example to other postal
employees of his reinstatement would thus in itself seriously impair
the statutory mission of the Postal Service.  Moreover, whatever Mr.
Hyde's allegations concerning the progress of his rehabilitation,
there remain legitimate doubts about whether he should be entrusted
with the delivery of the mails.  The Postal Service should not be
forced, even temporarily, to place such responsibility in the hands of
such an individual whom it no longer trusts;  nor should the Service
be compelled to incur the expense of assigning a supervisor to
accompany Mr. Hyde on his delivery route;  nor should the public be
forced to accept the risk represented by a mail carrier who, on valid
grounds, is not trusted by the Service.  People's lives often depend
on the mail, which may contain social security checks or other
necessities.  As the district court stated (Appendix D, infra, 3),
"the mails are simply too important to the country" for any other
conclusion.

   These considerations outweigh the interest of Mr. Hyde in returning
to his position immediately.  We are not unsympathetic to Mr. Hyde's
personal situation, but his difficulties were directly caused by his
own admittedly illegal behavior.  Moreover, Mr. Hyde has not held his
letter carrier position since August 1984, and a recall and stay of
mandate would merely continue the status quo for the additional months
required to dispose of the petition for a writ of certiorari.  In
these circumstances, we submit that the equities predominate in favor
of staying any eventual (and unlikely) reinstatement of Mr. Hyde, who
breached his public trust and deprived numerous postal patrons of
their mail, and who, in the better judgment of the Postal Service,
cannot be trusted to fulfill the Service's public duties.

                              CONCLUSION

   For the foregoing reasons, the mandate should be recalled and
stayed pending the timely filing and disposition of a certiorari
petition.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General Department of Justice Washington, D.C.  20530
      (202) 633-2217

   MAY 1987

   /1/ Of course, even if a private employer has no statutorily rooted
public mission, other public policies within the meaning of W. R.
Grace & Co. may be implicated by a reinstatement order against such an
employer.

   /2/ A similar conclusion may be applicable to some private
employers that are subject to statutory duties.  In Northwest
Airlines, Inc. v. Air Line Pilots Ass'n, 808 F.2d 76 (D.C. Cir. 1987),
petition for cert. filed, No. 86-1548 (Mar. 26, 1987), the petitioner
is arguing that it, an air carrier, is subject to such overriding
statutory duties.

   APPENDIX