UNITED STATES POSTAL SERVICE, PETITIONER V. NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO No. 87-59 In the Supreme Court of the United States October Term, 1987 On Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Reply Brief For The Petitioner In our opening brief, we first demonstrated (at 11-17) that a federal court may not enforce an arbitration award that improperly "compromises" or "conflicts" with an "explicit public policy" that is "well defined"and "dominant" in existing "laws and legal precedents." We then showed (at 17-39) that the arbitration award at issue in this case improperly "compromises" and "conflicts" with such a "well-defined" and "dominant" "public policy": The Postal Service is legally obligated to ensure that the mails are "promptly, reliably, and efficiently" delivered, and the Postal Service cannot comply with that legal obligation when it is required to place the mails in the hands of an individual such as the grievant, Edward Hyde, who has been criminally convicted of failing to deliver more than 3500 pieces of mail and who poses an undue risk of again removing the mails from their authorized stream. Respondent and its amici provide no convincing answers to these arguments. 1. Respondent first suggests (Br. 8-22) that, under the standards articulated by this Court in United Paperworkers Int'l Union v. Misco, Inc., No. 86-651 (Dec. 1, 1987), the arbitration award requiring reinstatement here cannot be held contrary to public policy and must be enforced. This suggestion is in error. In Misco, the Court reversed a judgement that had vacated on public policy grounds an arbitration award ordering the reinstatement of an employee whose car on company premises contained traces of marijuana. The Court found that the lower courts had improperly "made no attempt to review existing laws and legal precedents in order to demonstrate that they establish a 'well-defined and dominant' policy against the operation of dangerous machinery while under the influence of drugs" (slip op. 13). Moreover, the Court further found that, even if this "formulation of public policy is to be accepted, no violation of that policy was clearly shown in this case" (ibid.). The Court explained that "the assumed connection between the marijuana gleanings found in (the employee's) car and (his) actual use of drugs in the workplace is tenuous at best and provides an insufficient basis for holding that his reinstatement would actually violate the public policy . . . 'against the operation of dangerous machinery by persons under the influence of drugs or alcohol'" (id. at 14(citation omitted)). The Court added that (a) refusal to enforce an award must rest on more than speculation or assumption" by a federal court; that the question whether this employee "had ever been or would be under the influence of marijuana while he was on the job and operating dangerous machinery" is factual in nature and thus for an arbitrator to decide; that an arbitrator's finding, "as a factual matter(,) that (the employee) could be trusted not to use (drugs) on the job, . . . could not (be) upset (by a federal court) . . . because of its own view that public policy about plant safety was threatened"; and that where, as there, an arbitrator orders that employee "to be reinstated in his old job or in an equivalent one for which he was qualified," the reinstatement order may be vacated only if it is "clear from the record that (the employee) would pose a serious threat to the asserted public policy in every job for which he was qualified" (id. at 14-15 (footnotes omitted)). That the arbitration award here must be set aside as contrary to public policy follows straightforwardly from the Court's discussion in Misco. As respondent candidly concedes (Br. 5-6), there is a "well-defined" and "dominant" "public policy" in existing "laws and legal precedent" against which the arbitration award in this case may properly be tested: As noted in our opening brief (at 18-21), the public has a vital interest in the security and reliability of the mails, and Congress has accordingly mandated, through a series of civil and criminal statutes, that the Postal Service shall provide "prompt, reliable, and efficient services to patrons in all areas" and otherwise ensure the sanctity and integrity of every piece of mail. /1/ Moreover, in contrast to the situation in Misco, the arbitratration award here clearly "compromises" and "conflicts" with this "well-defined" and "dominant" public policy: Over the course of a year, Hyde failed to deliver more than 3,500 pieces of mail, conduct which resulted in a criminal conviction. Notwithstanding respondent's vigorous attempts to show that Hyde has been rehabilitated, the arbitrator found that Hyde is a compulsive gambler, that he -- the arbitrator -- could not foretell when, if ever, Hyde would be fully rehabilitated, that Hyde could not return to work for at least 60 days, and that, in all events, there was a threat of recurrence of misconduct. Finally, in ordering Hyde's reinstatement as a letter carrier, the arbitrator did not allow the Postal Service the option of placing Hyde in a position that did not have mail handling responsibilities (since no such letter carrier position exists). Pet. App. 21a-24a. In these circumstances, it is reasonable to conclude that Hyde poses a "serious threat" to the security of the mails (Misco, slip op. 15), and that the Postal Service's statutory obligation to ensure the security of the mails thus precludes his reinstatement. As the district court stated (Pet. App. 12a (footnote omitted)), "the mails are simply too important to the country to make them dependent upon the vicissitudes of rehabilitation of a single letter carrier." /2/ Respondent misread the arbitrator's award in suggesting (Br. 15-16) that the arbitrator did not find that Mr. Hyde posed a distinct and identifiable risk to the security of the mails. The arbitrator plainly found the Hyde was a compulsive gambler (Pet. App. 21a-22a), that the -- the arbitrator -- could not "fortell what the future prospects of the Grievant's rehabilitation may yield" (id. at 22a), and that "(t)his is indeed a tough decision," because "(t)here is the threat of recurrence of misconduct" (id. at 23a). Indeed, the arbitrator was not even convinced that Hyde presently has the "emotional ability to perform the work in an acceptable manner" (ibid.) and thus deferred Hyde's reinstatement for 60 days (ibid.). In short, the arbitrator did find that Hyde posed an identifiable risk to the mails. Respondent similarly errs in suggesting (Br. 15-16, 29-30) that, under Misco, the arbitrator's judgment concerning the acceptability of the risk associated with Hyde's reinstatement is binding on the Postal Service. The Misco opinion stated only that the question whether there is in fact an identifiable risk of a particular kind of future misconduct by a particular individual is for an arbitrator, and not for the courts, to decide. See slip op. 14-15 & n.11. Misco does not suggest that, once that risk is identified, as it was here, the distinct and purely evaluative or legal question whether that identified risk is unacceptably high is also committed to the arbitrator. On the contrary, Misco clearly states that "'the question of public policy is ultimately one for resolution by the courts'" (id. at 12 (citation omitted)), and W.R. Grace & Co. v. Rubber Workers Local 759, 461 U.S. 757 (1983), makes clear that whether an identified risk of future misconduct is unacceptably high is a question of public policy. See 461 U.S. at 766-772 (inquiring whether enforcement of an arbitration award would create "intolerable incentives" to disobey court orders or "inappropriately affect" the public polciy favoring voluntary compliance with Title VII); see also Department of Navy v. Egan, No. 86-1552 (Feb. 23, 1988), slip op. 10-11 ("what constitutes an acceptable margin of error in assessing the potential risk . . . must be a judgment call"); Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 655-656 & n.62 (1980) ("determination that a particular level of risk is 'significant' will based largely on policy considerations"); id. at 706 (Marshall, J., dissenting) (same). That principle applies with even greater force where, as here, the legal also implicates obligations imposed by statute on an employer. /3/ Indeed, respondent further errs in suggesting (Br. 17-22) that the Postal Service can comply with this arbitration award without compromising its statutory obligation to ensure the "prompt, reliable, and efficient" delivery of the mails. The award requires the Postal Service to reinstate Hyde to his letter carrier position. Though respondent at one point suggests (Br. 17) that some letter carriers do not have delivery duties, it does not and cannot dispute that Hyde had such delivery duties or that all letter carriers have either delivery, collection, or routing duties -- all of which require handling and possession of the mail. Thus, it is clear that the Postal Service cannot comply with this arbitration award without accepting a distinct risk that the mails will be removed from their proper stream -- and its obligation to ensure the security of the mails precludes it from subjecting its patrons to such an identifiable and undue risk. /4/ 2. The AFL-CIO, as amicus curiae in support of respondent, takes a slightly different tack. It too concedes (Amicus Br. 3-5, 13-14) that the arbitration award may properly be tested against the public policy requiring that the security and reliability of the mails be ensured; indeed, unlike respondent, it concedes (id. at 9-10, 14) that, in view of the arbitrator's factual findings, Hyde's reinstatement would pose a threat to the accomplishment of this public policy. But the AFL-CIO contends (id. at 13-19) that, in determining whether this arbitration award so clearly violates public policy that it should not be enforced, the Court must balance the threat to the security of the mails against other public policies -- i.e., policies that favor holding parties to their agreements, ensuring that labor-management relations are principally regulated through a regime of contract as opposed to public law, promoting arbitral resolution of labor disputes, and rehabilitating and accommodating ex-convicts and the handicapped. We do not agree. The public policy question presented in this case concerns whether this arbitration award "conflicts" with a "well-defined" and "dominant" public policy (i.e., protecting the security and reliability of the mails), not whether the award happens to promote other public policies at the same time as it produces this conflict (as will always be the case, given the vague and comprehensive nature of the public policies relied upon by the AFL-CIO, especially the policy, in effect, of enforcing arbitral awards). Thus, the common law holds that "(a) promise or other term of an agreement is uneforceable on grounds of public policy if legislation provides that it is unenforceable . . . ." Restatement (Second) of Contracts Section 178, at 6 (1981) (emphasis added). No balancing of public policies is proper where legislatively created policies are at issue. See id. Section 178 comment a. /5/ To be sure, in determining whether legislation provides that a particular promise or contract term is unenforceable, a court must undertake an interpretive process. Legislation is often written in general terms, and "legislatures seldom address themselves explicitly to the problems of contract law that may arise in connection" with the statutes they are enacting. Restatement (Second) of Contracts Section 179, at 16 (1981). See generally Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 188 (1982) ("Like many statutory definitions, this one tends toward the cryptic rather than the comprehensive."). In such circumstances, in order properly to determine whether there is a "well-defined" and "dominant" public policy against which a contract's terms must be tested, a court must examine all pertinent interpretive materials -- including, as explained in our opening brief (at 18-21, 25-27, 28-36, 38), the language and structure of the statute, its legislative history, and the various ends that the legislative scheme seeks to promote. See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 77-85 (1982); Restatement (Second) of Contracts Section 179 comment b (1981); see generally Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. at 187-209 (defining "free appropriate public education"); Ruckelshaus v. Sierra Club, 463 U.S. 680, 682-693 (1983) (defining when it is "appropriate" to award attorney fees). Having considered the relevant elements in defining the purport of the applicable legislative command, however, a court next asks only whether the arbitration award in issue unduly impedes the particular well-defined and dominant public policy it discerned in so construing the statute; it does not double-count those elements by engaging in an additional judicial balancing of public policies. See Restatement (Second) of Contracts Section 178 comment a (1981); id. Section 179 comment b; cf. Misco, slip op. 13 (citation omitted) (public policy analysis may not turn on judicial "assessment of 'general considerations of supposed public interests'"). In any event, it is clear that Congress has considered all of the policies relied on by the AFL-CIO and given first priority to the policy of protecting the security and reliability of the public mails. See generally 39 U.S.C. 101(e) (emphasis added) ("(i)n determining all policies for postal services, the Postal Service shall give the highest consideration to the requirement for the most expeditious collection, transportation, and delivery of important letter mail"). Thus, while Congress authorized the Postal Service "to enter into and perform contracts" (39 U.S.C. 401(3)), including collective bargaining agreements (39 U.S.C. 1206), it also made clear that any such delegations of authority "shall be consistent with other provisions of this title, shall not relieve the Board (of Governors) of full responsibility for the carrying out of its duties and functions, and shall be revocable by the Governors in their exclusive judgment" (39 U.S.C. 402). Similarly, while Congress provided that the Postal Service's labor-management relations would be regulated principally be a regime of contract as opposed to public law, it did so only "to the extent not inconsistent with (the) provisions of this title" and, of course, other public laws (39 U.S.C. 1209(a), 410, 1001(e)). Likewise, while Congress plainly intended to promote the arbitral resolution of Postal Service labor disputes, it authorized the use of arbitration procedures only for "grievances and adverse actions arising under the agreement" itself (39 U.S.C. 1206(b)); it did not suggest that non-contractual disputes could be, much less had to be, resolved through the arbitral process. Finally, while Congress stated that the Postal Service "shall follow an employment policy designed . . . to extend opportunity to the disadvantaged and the handicapped," it also mandated (39 U.S.C. 1003(b)) that the Postal Service do so "without compromising the policy of section 101(a) of this title" -- precisely the provision that specifies (39 U.S.C. 101(a)) that "(t)he Postal Service shall have as its basic function the obligation to provide . . . prompt, reliable, and efficient services to patrons in all areas . . . ." In short, Congress subordinated each of the interests upon which the AFL-CIO relies to the overriding statutory policy of protecting the security and reliability of the mails. 3. The AFL-CIO and respondent essentially acknowledge this congressional ordering of public policies by their concession (AFL-CIO Br. 14 n.5; Resp. Br. 23) that a court could set aside as contrary to public policy an arbitration award that authorized postal service employees to keep mail addressed to certain parts of the country or that required the Postal Service to shut down in July and August so that letter carriers could have a summer vacation. But they nevertheless contend (AFL-CIO Br. 19-27; Resp. Br. 23) that the congressional ordering of public policies does not allow the Postal Service or the ccourts to reject the conclusions of arbitrators in discipline cases. This distinction is arbitrary and unfounded. There is no basis for treating awards rendered in discipline cases any differently from awards rendered in cases dealing with other contract provisions. The statute does not suggest that they should be treated differently. On the contrary, it authorized binding third-party arbitration "for (the) resolution by the parties of grievances and adverse actions arising under the agreement" (39 U.S.C. 1206(b) (emphasis added)); and it does not suggest that any arbitration decisions, much less those in discipline cases, are exempt from the requirements of public law. See 30 U.S.C. 410, 1001(e), 1209(a). Nor do this Court's cases distinguish between arbitration awards relating to a "just cause" provision and arbitration awards relating to other terms of a collective bargaining agreement. Rather, the Court's cases have consistently held that all questions of fact and contract interpretation are for the arbitrator (unless the parties specify otherwise), and all question of public policy are ultimately for the courts. See Misco, slip op. 6-8, 12; AT&T Technologies v. Communications Workers, 475 U.S. 643, 648-651 (1986). Finally, it is impossible to distinguish between risks created by disciplinary awards and risks created by arbitration awards relating to other provisions of the contract; in each case, the question is whether the risks imposed constitute a "serios threat" to the prompt, reliable, and efficient delivery of the mails. See Misco, slip op. 15. The AFL-CIO plainly errs in suggesting (Br. 24-25) that discipline cases are different from other cases because arbitrators are uniquely situated to determine whether the risks associated with employment of particular individuals pose a serious threat to the accomplishment of the Postal Service's statutory obligations. We concede, of course, that such determination require the exercise of a substantial degree of judgement. But we do not understand why the arbitrator's allegedly unique perspective is limited to discipline cases or, more importantly, why arbitrators are competent or authorized to make judgements about the acceptability of such risks at all. The security of the mails can be put at risk by non-discipline awards as well -- for example, by an award that overturns a Postal Service work rule requiring letter carriers to return undelivered mail to the office at the end of a shift. Whether the security risks thereby created are intolerable must be decided by reference to public law considerations (see W.R. Grace & Co. v. Rubber Workers Local 759, 461 U.S. at 766-772), and arbitrators are not competent to make the final judgment concerning the degree of risk that the public may legally be forced to assume with respect to the safe and timely delivery of its mail. The "specialized competence of arbitrators pertains primarily to the law of the shop, not (to) the law of the land" (Alexander v. Gardner-Denver Co., 415 U.S. 36, 57 (1974)), as embodied in this particular case in the statutes protecting the mails and directing the operations of the Postal Service. In any event, even if a particular arbitrator were otherwise competent to interpret and apply the public law, and thus to determine the degree of risk that Congress has resolved the public should assume, "he may not have the contractual authority to do so. . . . He 'has no general authority to invoke public laws that conflict with the bargain between the parties.' . . . His task is limited to construing the meaning of the collective-bargaining agreement so as to effectuate the collective intent of the parties." Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 744 (1981) (citation omitted). Accordingly, he may determine as here, that, as a contractual matter, there is not "just cause" for discharge (because of mitigating circumstances arguably contemplated by the parties) -- even though, as a legal matter, reinstatement of the individual would unduly impair the ability of the Postal Service to ensure the sanctity and integrity of the public mails. In similar circumstances, this Court has said the external. authorities such as courts must retain the final say in order to ensure that overriding public interests are properly vindicated. See, e.g., Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272 (1964); McDonald v. City of West Branch, 466 U.S. 284, 290-291 (1984); Alexander v. Gardner-Denver Co., 415 U.S. at 53-58. The AFL-CIO cries "wolf" in suggesting (Br. 24-27) that empowering federal courts to make these judgments will lead to the destruction of the private arbitration system. As explained in our opening brief (at 25), the Postal Service cannot legally walk away from its employees' collective bargaining representative and, accordingly, it would be against the Postal Service's own long-run self-interest to use its statutory obligations in a way that would impair the system of contractual dispute resolution that the parties have jointly created. /6/ Moreover, as also explained in our opening brief (at 34-36), the Postal Service cannot use its statutory obligations as an excuse for refusing to comply with every arbitration award with which it disagrees, even if it would prefer to do so; the Postal Service can invoke it statutory obligations only where, given the arbitrator's factual findings, the award is one that, if complied with, would seriously impair the irreducible duties of the Postal Service, which relatively few arbitration awards can fairly be said to do. /7/ Finally, courts have long been judging under the authority of other laws -- such as the antitrust laws and the labor laws -- whether particular terms of collective bargaining agreements (and arbitration awards implementing them) create legally unacceptable risks of future harm to well-defined and dominant public policies. See, e.g., Kaiser Steel Corp. v. Mullins, 455 U.S. at 77-85; W.R. Grace & Co. v. Rubber Workers Local 759, 461 U.S. at 769, 771. Private dispute resolution has not collapsed under the weight of this external review process, and there is no reason to speculate that any more serious results would follow from allowing federal courts to make such judgments in the course of enforcing the public policy requiring that the security of the mails be ensured. /8/ 4. Respondent next argues (Br. 22-24) that we have attempted to substitute for the Misco criteria an alternative public policy analysis based on the Postal Service's status as a public employer and that this attempted substitution is inconsistent with the text, structure, and legislative history of the Postal Reorganization Act (PRA), 39 U.S.C. (& Supp. III) 101 et seq. This argument has no merit. As explained in our opening brief (at 11-17), our argument fits squarely within the Misco criteria. Misco holds that an arbitration award may not be enforced if it "clearly conflicts" with a "well-defined" and "dominant" "public policy." We have identified such a "well-defined" and "dominant" "public policy" -- i.e., the public requirements that the security and reliability of the mails be maintained -- and have demonstrated that the arbitration award in this case "clearly conflicts" with that policy -- i.e., it creates a "serious threat" that the mails will be wrongly removed from from their authorized stream. Thus, respondent errs in suggesting that we have attempted to substitute for the Misco criteria an alternative public policy analysis based on the Postal Service's status as a public employer; and, accordingly, its lengthy discussion of the text, structure, and legislative history of the PRA is directed at an argument we simply have not made. /9/ To be sure, toward the close of our opening brief (at 37-38), we suggested that the Postal Service's determination that compliance with an arbitration award would be inconsistnet with its statutory obligations is entitled to some deference from the courts. But this suggestion was not based on the Postal Service's status as a public employer. Rather, it was based on the Postal Service's status as the principal agency of government charged with administering and interpreting the PRA. This status does not confer upon Postal Service "managment special discretion to reject arbitration awards" (Resp. Br. 31). But it does entitle the Postal Service to judicial deference with respect to its interpretations and applications of the substantive provisions of the PRA. See National Ass'n of Postal Supervisors v. USPS, 602 F.2d 420, 439 (D.C. Cir. 1979); see generally Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Accordingly, the Court, in evaluating whether Hyde's reinstatement would create a "serious threat" to public policy, should give deference to the Postal Service's judgment that the risk identified by the arbitrator is one the Postal Service is statutory not permitted to incur. Nothing in the PRA's language, structure, or legislative history suggests that deference of this kind is inappropriate. /10/ In any event, even if the Postal Service's interpretation and applications of its governing mandate were not entitled to judicial deference, the arbitration award requiring Hyde's reinstatement still could not stand. The Court's decision in Misco plainly states both that "'a court may not enforce a collective-bargaining agreement that is contrary to public policy'" and that "'the question of public policy is ultimately one for resolution by the courts.'" Misco, slip op. 12 (quoting W.R. Grace & Co. v. Rubber Workers Local 759, 461 U.S. at 766). As resondent concedes (Br. 23), the Postal Service's statutory mandate is such a "public policy" and, because of this public policy, some arbitration awards cannot be enforced by the courts. For the reasons set forth above (pages 3-4, supra) and in our opening brief (at 21-24, 38-39), the reinstatement order in this case is one such award. 5. Finally, respondent errs in suggesting (Br. 42-44) that this case should be remanded to the arbitrator for further factfinding or, in the alternative, for the fashioning of an alternative remedy. The arbitrator ordered that Hyde be reinstated to his letter carrier position without regard to whether the risk of future misconduct would actually be dissipated during the 60-day medical leave period. The question presented therefore is whether this award violates public policy; obviously, no fact-finding concerning Hyde's actual condition at the end of his medical leave is necessary to resolve that question. For similar reasons, no alternative remedy is allowable. If the promise to reinstate Hyde notwithstanding the threat he poses to the security of the mails is inconsistnet with public policy, it is unenforcealbe for all purposes -- including for the purpose of a claim for damages. Accord Kaiser Steel Corp. v. Mullins, 455 U.S. at 78-83. And since the arbitrator did not interpret the contract to allow the Postal Service the option of assigning Hyde to a position where he would not present a threat to the security of the mails (since no such letter carrier position exists), the Court should not ask the arbitrator to reconsider the question; the courts are supposed to respect the finality of such contractual judgments by arbitrators. See Misco, slip op. 7-8, 10 n.10. For these reasons, as well as those set forth in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General APRIL 1988 /1/ See also H.R. Rep. 1674, 82d Cong., 2d Sess. 2 (1952) ("the thing being protected here is more the sanctity and integrity of the United States mails than it is the property value of individual pieces of mail"); ibid. ("It can hardly be said that letters, in the vast number of cases, have any monetary or intrinsic value. The almost incalculable importance of the ideas, messages, and expressions contained in business correspondence, and of the sentiment, joy, or grief contained in personal or family letters cannot be measured in terms of dollars. Therefore, the real gravamen of the offense is the very consequential misunderstanding, disappointment, delay, and grief which interference with the mail may entail, rather than the loss of intrinsic property value in the article of mail itself"); id. at 3 ("Historically, the sanctity and integrity of the mail has been a matter long regarded as of the utmost importance. . . . The efficiency and safety of this public service should not be impaired"). /2/ Contrary to the argument of the National Council on Compulsive Gambling (Amicus Br. 7-8, 11-12), we do not suggest that the public policy requiring that the security of the mails be ensured precludes the Postal Service from employing as letter carriers individuals who have had a history of compulsive gambling; indeed, as explained in our opening brief (at 23-24), we believe that the Postal Service may employ as letter carriers persons who have been convicted of crimes or who in the past have had serious physical or mental disorders. Nor do we suggest, as the AFL-CIO suggests (Amicus Br. 10-12), that the submission of "just cause" decisions concerning Postal Service employers to neutral arbitration offends public policy; we contend only that the Postal Service may not comply with a "just cause" decision that would require it to reinstate to a letter carrier position an individual who the arbitrator has found poses a continuing risk to the security of the mails (because, for example, he has quite recently engaged in misconduct apparently attributable to a compulsive gambling problem for which he has not been fully rehabilitated). The Postal Service's legal obligations preclude it from subjecting the mails to the risks of recidivism and misconduct that the National Council on Compulsive Gambling identifies (Amicus Br. 9-11) and that would be incurred by compliance with such an arbitration award. The Postal Service's position here is completely consistent with the Merit Systems Protection Board (MSPB cases that respondent cites (Br. 9-10 n.6). In those cases, the MSPB found that, in light of the evidence presented concerning each employee's infraction, his employment record, and rehabilitative success, reinstatement would not pose an identifiable risk to the sanctity and integrity of the mails. See Smith v. USPS, 31 M.S.P.R. 508, 510-511 (1986); Taylor v. USPS, 29 M.S.P.R. 350, 352-353 (1985); Robinson v. USPS, 28 M.S.P.R. 681, 688 (1985); Lampack v. USPS, 27 M.S.P.R. 468, 470 (1985); Villanueva v. USPS, 26 M.S.P.R. 534, 536-537 (1985); Ballenger v. USPS, 21 M.S.P.R. 741, 743 (1984). Here, of course, the arbitrator made precisely the opposite factual finding. /3/ The Court has, of course, long held contracts unenforceable on the ground that enforcement would tend unacceptably to induce conduct contrary to public policy. See, e.g., Crocker v. United States, 240 U.S. 74 (1916) (contingent fee contracts held invalid because of tendency to induce improper solicitation of public officials); Burt v. Union Central Life Ins. Co., 187 U.S. 362 (1902) (refusing to enforce life insurance policy where the insured had been executed following his conviction for capital murder because economic interest of beneficiary may color beneficiary's testimony at insured's trial). /4/ The Postal Service cannot responsibly mitigate this risk, as respondent suggests (Br. 17), by assigning a supervisor to stand guard over Hyde and closely supervise his handling of the mails. Even if constant supervision were physically possible, "(s)uch close supervision as might be prudent could well be too costly to be even remotely efficient." USPS v. American Postal Workers Union, 736 F.2d 822, 825 (1st Cir. 1984). Thus, assigning a supervisor closely to supervise Hyde's handling of the mails would itself "stand() as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" (Hines v. Davidowitz, 312 U.S. 52, 67 (1941)) -- i.e., to the "prompt, reliable, and efficient" delivery of the mails by the Postal Service. Similarly, while the Postal Service might be able to institute a new discharge decision on the basis of a psychiatric examination, as respondent suggests (Br. 18-20), it need not subject Hyde to such an examination in order to invoke public policy as a basis for refusing to comply with the award actually at issue in this case -- i.e., an award reinstating a compulsive gambler who the arbitrator could not determine was or would ever be fully rehabilitated and who therefore presents a risk of recurrence of misconduct. Since the arbitrator did not condition Hyde's reinstatement on his successful completion of a psychiatric (as opposed to a physical) examination, the fact that Hyde might (or might not) be able to pass such an examination is irrelevant to the question of the enforceability of this award. Finally, there is not basis for respondent's suggestion (Br. 20-22) that the Postal Service cannot rely on the adverse effect the Hyde's reinstatement would have on co-workers and public confidence in order to justify invoking public policy as a basis for vacating the arbitration award. These obvious adverse effects of allowing Hyde's return to mail handling do not have to be conclusively documented in the record (see Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 810 (1985)), and the Postal Service does not have to "allow events to unfold to the extent that the disruption of the office and the destruction of working relationships (are) manifest before taking action." Connick v. Myers, 461 U.S. 138, 152 (1983). Of course, impressing the seriousness of the Postal Service's task upon co-workers and the public promotes the same public policy that is promoted by removing Hyde from the handling of the mails -- it preserves the integrity and sanctity of the mails. Accord USPS v. American Postal Workers Union, 736 F.2d at 825; Johnson v. USPS, 756 F.2d 1461, 1466 (9th Cir. 1985). /5/ Of course, as the AFL-CIO notes (Amicus Br. 13 & n.4), the common law also holds that a promise or other term of an agreement is unenforceable on grounds of public policy if "the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms." Restatement (Second) of Contracts Section 178, at 6 (1981)). But this Court has declined to resolve whether, under the federal common law applicable to labor agreements, a court may refuse to enforce an arbitration award that does not violate positive law or compel unlawful conduct by the employer (Misco, slip op. 15 n.12). Our argument in this case, that enforcement of the arbitration award would be inconsistent with the Postal Service's statutory duties, does not require resolution of that question and, accordingly, does not require the Court to resolve whether, in a case dealing with a public policy not grounded in positive law, federal court could engage in the AFL-CIO's "balancing of interests" approach. See Misco, slip op. 1 (Blackmun, J., concurring) (reserving judgment with respect to whether "a court's authority to set aside an arbitration award on public policy grounds differs from its authority, outside the collective-bargaining context, to refuse to enforce a contract on public policy grounds"). /6/ As we noted in our opening brief (at 34-35 n.8), the Postal Service has challenged on public policy grounds only a handful of the thousands of grievance arbitration awards in which it is annually involved. /7/ For example, the Postal Service cannot rely on its statutory obligations to resist compliance with an arbitration award that orders the reinstatement of an individual who has a chronic attendance problem and is likely to have unexcused absences again. Likewise, the Postal Service cannot rely on its statutory obligations to resist compliance with an arbitration award that orders the reinstatement of an individual who has routinely made mistakes in sorting the mail and is likely to do so again. While the actions of both employees reduce the effectiveness of Postal Service operations, they do not remove the mails from the authorized stream or otherwise completely prevent the Postal Service from meeting its irreducible statutory obligations. /8/ Citing a handful of cases, the AFL-CIO argues (Br. 25-27 & nn. 12, 13) that the public policy exception is already causing the arbitral system to unravel at the seams. Given the many thousands of arbitration awards rendered annually, this mere handful of cases provides scant support for the AFL-CIO's argument. In any event, those cases involve various public policy arguments, only a few of which are based in positive law (as here), and only two of which involve public policies relating to the Postal Service (as here). Thus, the Court's decision in this case is unlikely to shed much light on the propriety of those public policy decisions or to encourage additional (unjustified) public policy litigation. /9/ At various points in its discussion of the language, structure, and legislative history of the PRA, respondent suggests (Br. 29, 30-31, 40-42) that the Postal Services is empowered to divest itself by contract of its statutory obligations. This suggestion is incorrect. As explained in our opening brief (at 28-31), the language of the PRA does not merely permit the Postal Service to deliver the mails in a prompt, reliable, and efficient manner; it unequivocally commands that the Postal Service do so. Moreover, as also explained in our opening brief (at 31-34), while the language, structure, and legislative history of the PRA indicate that Congress generally intended for the Postal Service to be treated like an ordinary private employer with respect to labor-management relations issues (except where otherwise provided), those same interpretive materials indicate that Congress understood that the Postal Service would have a unique public law mission and that this public law mission would act as an express, external restraint on the private law agreements into which the Postal Service may lawfully enter. Indeed, respondent's acknowledgment (Br. 23) that the Postal Service would not have to comply with an arbitration award ordering the entire Postal Service to shut down in July and August so that letter carriers could have a summer vacation confirms our understanding of the pertinent interpretive materials. /10/ Rather, the statute makes clear that the Postal Service has the power both "to adopt, amend, and repeal such rules and regulations as it deems necessary to accomplish the objectives of this title" (39 U.S.C. 401(2)), and "to have all other powers incidental, necessary, or appropriate to the carrying on of its functions or the exercise of its specific powers" (39 U.S.C. 401(10)).