Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—4th Cir.: Firearms instructor not ‘managerial employee’ exempt from protections of NLRA against retaliation, (Dec 2, 2025)

By Ronald Miller, J.D.

In assessing whether an employee is managerial, the proper focus is on the employee’s “actual job responsibilities, authority, and relationship to management.”

Substantial evidence on the record supported the NLRB’s finding that a firearms and tactics instructor was not a “managerial employee” excluded from the protection of the NLRA against retaliation for engaging in protected concerted activity, ruled the Fourth Circuit. This case provided the appeals court with its first opportunity to construe the managerial exception. Given that instructors were not permitted to formulate or effectuate management policies; they had no ability to alter the curriculum they teach; they play no role in selecting students for training; they are not allowed to discipline students independently; and they cannot make the ultimate decision regarding whether a student is permitted to remain in the training program, the employee’s position as an instructor lacked sufficient indicia of managerial status to fall under the exception. Accordingly, the appeals court granted the Board’s application for enforcement and denied the employer’s cross-petition for review (NLRB v. Constellis, LLC dba Academi Training Center, LLC, Nos. 23-1861 and 23-1925 (4th Cir. Dec. 1, 2025)).

Firearms instructors. The employer employs security officers and contracts them out to provide security at various federal government properties. It also trains security officers in the handling of weapons. This case concerns whether the employer’s firearms and tactics instructors in its training programs are properly considered “employees” for purposes of the NLRA.

Instructors taught small groups of students how to handle a variety of weapons. The employer mandated that instructors adhere to curricula set by management. It also provided “range cards,” which detailed the shooting drills that instructors were required to have the students follow. Instructors were not permitted to deviate from or alter the prescribed curricula or drills specified on the range cards without supervisory approval.

However, instructors were permitted some discretion in carrying out their jobs. They could remove a student from a live firing situation if they observed a safety violation. The instructors could also file “spot reports” about students who engaged in misconduct. The employer’s policy prohibited instructors from otherwise disciplining or removing students from the training program. Such actions could be taken only at the direction of a supervisor.

Working conditions. An employee raised concerns about working conditions with his supervisors more than once. During a staff meeting at the start of the COVID-19 pandemic, the employee questioned the employer’s prohibition on instructors and students wearing personal protective equipment at work. Shortly thereafter, a supervisor formally documented an unrelated workplace infraction allegedly committed by the employee months earlier.

Several months later, the employee—together with other instructors—sent a letter to management voicing their objection to a problem at the firing ranges that caused bullets to ricochet back toward shooters. They requested that the employer fix the problem immediately. In response, the employer temporarily closed the most dangerous range and later claimed to have fixed the problem. The ricochet problem persisted.

During a meeting with his supervisors, the employee confronted them about the company’s failure to correct the issue. He raised his voice and yelled at a supervisor. After this meeting, the employer suspended the employee and later fired him, allegedly for insubordination.

Retaliation claim. Thereafter, the employee filed a charge with the NLRB alleging that he had been terminated unlawfully in retaliation for speaking out about unsafe working conditions at the firing range. A Regional Director filed a complaint against the employer for violating Section 8(a)(1) of the NLRA.

Although the employer conceded that the employee had repeatedly complained about unsafe working conditions, it maintained that he had been fired because of alleged insubordination, not in retaliation for his concerted activity. Moreover, the employer argued that the employee was a “managerial employee” and thereby excepted from the NLRA’s protections.

Following a hearing, an NLRB administrative law judge concluded that the employee was not a managerial employee and was, therefore, entitled to the full protection of the NLRA. The ALJ further found that the employer suspended and terminated him, in large part, because he had raised concerns about its approach to personal protective equipment at the start of the COVID-19 pandemic and the ongoing ricochet problem in the firing ranges. Thereafter, the Board affirmed and adopted the decision with only minor modifications.

Application for enforcement. The Board petitioned the Fourth Circuit for enforcement of its order, while the employer cross-petitioned for review, challenging the Board’s finding that the employee was not a managerial employee.

Managerial exception. The NLRA protects “any employee” unless the employee is specifically excepted. The Supreme Court created one such exception in NLRB v. Bell Aerospace Co. Division of Textron, 416 U.S. 267, 288 (1974), for “managerial employees” who “formulate and effectuate management policies by expressing and making operative the decisions of their employer.” The Supreme Court reasoned that Congress regarded managerial employees as “so clearly outside the [NLRA] that no specific exclusionary provision was thought necessary.”

The Fourth Circuit observed that this is the first time it has been called upon to construe the managerial exception. It agreed with its sister circuits that the managerial exception must be construed narrowly given the NLRA’s otherwise broad definitional language. In assessing whether an employee is managerial, the proper focus is on the employee’s “actual job responsibilities, authority, and relationship to management.”

In this instance, the employee’s position as an instructor lacked sufficient indicia of managerial status to fall under the exception: instructors were not permitted to formulate or effectuate management policies; they had no ability to alter the curriculum they teach; they play no role in selecting students for training; they are not allowed to discipline students independently; and they cannot make the ultimate decision regarding whether a student is permitted to remain in the training program. The authority of instructors to remove a student from class temporarily because of a safety violation did not evidence the level of discretion characteristic of managerial employees.

Accordingly, the appeals court granted the Board’s application for enforcement and denied the employer’s cross-petition for review.

The case is Nos. 23-1861 and 23-1925.

Judge: Berner, N.

Attorneys: Jared David Cantor for NLRB. Michael MacHarg, Sr. (Kaufman Dolowich) and Joshua Counts Cumby (Adams & Reese) for Constellis, LLC dba Academi Training Center, LLC.

Companies: Constellis, LLC; Academi Training Center, LLC

MainStory: TopStory Labor UnfairLaborPractices CoverageLiability Safety Retaliation Covid19 AgencyNews MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews GCNNews