By Bodah, Matthew M.
Dispute Resolution Journal , Vol. 63, No. 4
An overview of the law on arbitrator immunity and its application to labor arbitrators.
Most professions face legal consequences for professional negligence. This is why professional liability insurance exists. At a recent training program I attended for new labor arbitrators, the trainer suggested that we purchase liability insurance because the number of lawsuits against arbitrators was increasing.1 This was news to many in the room, particularly the non-lawyers, who never imagined that an award upholding a discharge from employment or loss of seniority or a promotion might lead a grievant to go after the arbitrator in court. Coincidently, shortly after I attended that training program, a colleague who has been a labor arbitrator for many years was sued for the first time by a grievant whose termination he had upheld.
There is no federal statute protecting arbitrators from liability. The Revised Uniform Arbitration Act does give arbitrators immunity to the same extent as judges.2 So there is some protection from liability in states that have adopted this model law. In addition, arbitrators are protected by the common law doctrine of arbitral immunity. However, this doctrine will not prevent arbitrators from being sued by dissatisfied arbitration litigants. The purpose of this article is to give labor arbitrators an overview of arbitrator immunity and its application to labor arbitration.3
The doctrine of arbitral immunity is an extension of judicial immunity. For centuries, courts have recognized that the judicial system could not function if judges could be held liable for their decisions. The doctrine of judicial immunity, as fully articulated by the U.S. Supreme Court in 1871 in Bradley v. Fisher, gave judges immunity from civil liability for any act performed by them in a "judicial capacity."4 The Bradley Court concluded that immunity protects the finality of judgments and judicial independence by insulating judges from vexatious lawsuits brought by disgruntled litigants. It noted that this immunity is not affected by how erroneous the act may have been. The Court noted that judicial immunity "has been the settled doctrine of the English courts for many centuries."
Since the scope of arbitral immunity is related to the scope of judicial immunity, it is important to ask: How broad is judicial immunity? In 1879, in Ex parte Virginia, the Supreme Court ruled that a county judge who was criminally charged with discriminating on the basis of race in selecting jurors was not entitled to immunity because the actions were ministerial in nature, not judicial. 5 That the jurors were selected for a trial court made no difference, the Court found.
Nearly a century later, in Forrester v. White, a civil rights case, the Supreme Court held that a state court judge's decisions to demote and then dismiss a subordinate court employee was not a judicial act for which he should be held absolutely immune.6 This decision reversed a majority ruling by the 7th Circuit, which had held that immunity should apply because members of a judge's staff aid in the performance of adjudicative functions, and unless the judge was free to replace his staff, the quality of his decisions might decline. Judge Richard Posner dissented from the panel's decision, arguing that employment decisions are administrative functions for which judges should not be given absolute immunity. He argued that judicial immunity should protect only adjudicative functions.
On review, the Supreme Court noted that the immunity of judges, though "comparatively sweeping," has not been "perfectly well defined." It acknowledged difficulties in drawing the line between truly judicial acts and acts that happen to have been done by judges. The Court then provided this practical guidance: Whether an act is judicial or not is to be determined by its character, and not by the character of the agent. Thus, administrative decisions, though essential to the functioning of the courts, tend not to be regarded as judicial acts because they could be done by anyone. …