Constraining the Managerial Employee Exception under the NLRA: Commentary on NLRB v. Constellis, LLC (4th Cir. 2025)

I. Introduction

In NLRB v. Constellis, LLC, decided December 1, 2025, the U.S. Court of Appeals for the Fourth Circuit addressed for the first time the judicially created “managerial employee” exception to the National Labor Relations Act (NLRA). The decision arises out of the firing of Michael Macri, a firearms and tactics instructor employed by Constellis, a security contractor and weapons training provider.

Macri repeatedly raised safety concerns during the COVID-19 pandemic and about a grave range safety problem: bullet ricochets that had already injured shooters. After a confrontational meeting in which he pressed management on the unresolved hazard, Constellis suspended and then terminated him. The National Labor Relations Board (NLRB or Board) concluded that Macri was an “employee” protected by the NLRA and that his discharge was unlawful retaliation for protected concerted activity. The Board ordered his reinstatement with backpay, and the NLRB General Counsel sought enforcement of that order. Constellis cross-petitioned, arguing primarily that Macri was a “managerial employee” and thus excluded from the Act’s protection.

The Fourth Circuit granted the Board’s application for enforcement and denied Constellis’s cross-petition, holding that substantial evidence supported the Board’s determination that Macri was not a managerial employee. The opinion clarifies that the managerial exception must be narrowly construed and that instructors whose discretion is confined to implementing pre-set curricula and ensuring immediate safety on the range do not “formulate and effectuate” management policy.

II. Factual and Procedural Background

A. Parties and Industry Context

Constellis provides armed security services at federal facilities and operates training programs for security officers in firearms and tactics. Macri worked as one of these firearms and tactics instructors, teaching small groups of students how to handle weapons according to a curriculum and range procedures devised by Constellis management.

The case unfolds against two converging backdrops:

The onset of the COVID-19 pandemic, during which Constellis prohibited instructors and students from wearing personal protective equipment (PPE) at work.
Serious safety issues on the firing ranges, including bullet ricochets that posed risks of “injury or death” to both students and instructors.

B. Macri’s Duties and Safety Complaints

Macri’s core job was to teach weapons handling consistent with management’s prescribed curriculum:

Constellis required instructors to follow curricula set by management.
Instructors received “range cards” specifying drills; they could not alter those drills without supervisory approval.
Instructors had limited discretion:
- They could temporarily remove a student from a live firing line for safety reasons.
- They could file “spot reports” for student misconduct (e.g., Macri reported a student who smelled of alcohol).
But they had no authority to:
- Modify the training curriculum or range procedures.
- Discipline students beyond filing reports.
- Remove students from the program altogether; this required supervisory decision-making.

Indeed, Macri was himself disciplined for requiring students to do “burpees” as punishment for returning late from a break—illustrating that his authority to discipline was sharply limited and tightly controlled by management.

Macri then engaged in several episodes of concerted workplace safety advocacy:

COVID-19 PPE concerns. At a staff meeting early in the pandemic, he questioned the policy prohibiting PPE use by instructors and students. Soon afterward, a supervisor formally documented an unrelated alleged infraction from months earlier.
Range ricochet letter. Months later, Macri and several instructors sent a written letter to management about the ricochet problem:
[A] serious but correctable life hazard to both students and instructors… [that could lead to] injury or death.
They demanded immediate corrective action. Constellis temporarily closed the most dangerous range and claimed to have remedied the issue.
Confrontation over ongoing safety hazard. When ricochets persisted, Macri confronted supervisors in a meeting, raising his voice and yelling about the ongoing risk and failure to correct it. Following this meeting, Constellis suspended and ultimately fired him for alleged insubordination.

C. NLRB Proceedings and Board Decision

Macri filed an unfair labor practice charge. The NLRB’s Regional Director investigated and issued a complaint alleging a violation of NLRA Section 8(a)(1), which prohibits employers from interfering with or retaliating against employees for engaging in “concerted activities for the purpose of… mutual aid or protection.” 29 U.S.C. §§ 157, 158(a)(1).

Constellis responded with two principal defenses:

Macri was fired for insubordination, not for his protected safety complaints.
Macri was a “managerial employee” and therefore outside the NLRA’s protections.

After a hearing, the Administrative Law Judge (ALJ) found:

Macri was not a managerial employee and was entitled to NLRA protection.
His protected safety activities—COVID-19 PPE objections and range ricochet complaints—were at least a substantial or motivating factor in his suspension and termination, satisfying the causation standard under Wright Line, 251 N.L.R.B. 1083 (1980), as applied in RGC (USA) Mineral Sands, Inc. v. NLRB, 281 F.3d 442 (4th Cir. 2002).

The Board affirmed the ALJ’s findings and order with minor modifications, directing Constellis to:

Reinstate Macri.
Pay him backpay for lost wages.

The NLRB General Counsel petitioned the Fourth Circuit for enforcement of the Board’s order, and Constellis cross-petitioned for review, disputing exclusively the finding that Macri was not a managerial employee.

III. Summary of the Fourth Circuit’s Opinion

The Fourth Circuit, in a published opinion by Judge Berner joined by Judges Agee and Heytens, held:

Standard of review: The court reviews the Board’s factual findings, and mixed questions such as managerial status, under the “substantial evidence” standard, and treats such findings as conclusive if adequately supported by the record as a whole.
Legal standard for “managerial employees”: The court adopts the Supreme Court’s definition from NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974): managerial employees are those who “formulate and effectuate management policies by expressing and making operative the decisions of their employer.” This judge-made exception must be construed narrowly.
Application to Macri: Substantial evidence supports the Board’s conclusion that Macri is not a managerial employee:
- He did not formulate or implement management policy.
- He could not modify curricula or range drills without approval.
- He had no authority to select or remove students from the program.
- His discretion was limited to immediate safety interventions and reporting misconduct.
The limited authority to temporarily pull students from the firing line for safety reasons is analogous to the authority of non-managerial classroom teachers to remove disruptive students, not to managerial authority.
The court rejects Constellis’s remaining arguments:
- It was not error for the Board to draw on its decision in Wolf Creek Nuclear Operating Corp., 349 N.L.R.B. 686 (2006), which addressed managerial status in another high-risk technical environment.
- There is no support for the claim that the ALJ engaged in results-oriented reasoning.

Accordingly, the court grants the Board’s application for enforcement and denies Constellis’s cross-petition for review. The Board’s remedial order therefore becomes enforceable law.

IV. Detailed Analysis

A. The Managerial Employee Exception Under the NLRA

1. Statutory baseline: “Any employee”

The NLRA broadly protects “employees” under 29 U.S.C. § 152(3) and grants them rights to engage in concerted activities under 29 U.S.C. § 157. That definition includes professional employees, unless specifically excluded (such as “supervisors” under § 2(11), independent contractors, agricultural laborers, etc.).

The term “managerial employee” does not appear in the statute. Instead, the Supreme Court crafted this category in Bell Aerospace, reasoning that certain high-level employees are “so clearly outside” the NLRA’s contemplated bargaining unit that Congress assumed no explicit exclusion was necessary.

2. Bell Aerospace: Creating the managerial exception

In NLRB v. Bell Aerospace Co. Division of Textron, 416 U.S. 267 (1974), the Supreme Court held that “managerial employees” are excluded from “employee” status even though not expressly named in the statute. Such employees:

“formulate and effectuate management policies by expressing and making operative the decisions of their employer.” (Id. at 288.)

The Court stressed that the inquiry focuses on the actual job responsibilities, authority, and relationship to management. (Id. at 290 n.19.) The theory is that individuals who effectively define or implement corporate policy align with management’s interests rather than with the rank-and-file.

3. Yeshiva University: Limits on managerial status

In NLRB v. Yeshiva University, 444 U.S. 672 (1980), the Supreme Court refined this concept in the context of university faculty. While the Court ultimately found many faculty to be managerial, it also emphasized what does not qualify:

Employees whose decision-making is limited to the routine discharge of professional duties on assigned projects are not managerial. (Id. at 690.)
Even substantial expertise or responsibility for planning, directing, or evaluating other employees does not automatically confer managerial status. (Id. at 690 n.30.)

The Fourth Circuit here expressly relies on Yeshiva’s formulation: a person is managerial only if their responsibilities are so aligned with management that they “represent management interests by taking or recommending discretionary actions that effectively control or implement employer policy.” (444 U.S. at 683.)

4. Narrow construction of exceptions

The Fourth Circuit joins other circuits in emphasizing that the managerial exception must be narrowly construed, consistent with the NLRA’s broad protection of “any employee.” The opinion cites:

University of Southern California v. NLRB, 918 F.3d 126, 140 (D.C. Cir. 2019): warning against interpreting the managerial exception so broadly that it “chips away” at the NLRA’s protections.
David Wolcott Kendall Memorial School v. NLRB, 866 F.2d 157, 160 (6th Cir. 1989): the managerial exception must be narrowly construed to avoid undercutting the Act’s coverage of “any employee,” including professionals.
Holly Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996): courts must ensure exemptions from NLRA coverage are not so expansively interpreted as to deny protection to intended beneficiaries.
Entergy Gulf States, Inc. v. NLRB, 253 F.3d 203, 208 (5th Cir. 2001): the statutory “supervisor” exception is not construed broadly because that would strip employees of rights the NLRA seeks to protect.

By explicitly aligning itself with this narrow-interpretation approach, the Fourth Circuit cements a principle that exceptions—whether statutory (like supervisors) or judicial (like managerial employees)—must not be allowed to swallow the rule of broad employee coverage.

B. Standard of Review and Deference to the Board

Under 29 U.S.C. § 160(f), the court treats the Board’s findings of fact as “conclusive” when supported by “substantial evidence on the record considered as a whole.” This applies not only to pure facts but also to mixed questions of law and fact, including whether a particular worker is a managerial employee. The court relies on its own precedent in NLRB v. HQM of Bayside, LLC, 518 F.3d 256, 260 (4th Cir. 2008), for that proposition.

The opinion further elaborates the “substantial evidence” standard by citing:

Biestek v. Berryhill, 587 U.S. 97, 102–03 (2019), which, quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), defines substantial evidence as:
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

In practice, this is a deferential standard. The court does not reweigh evidence de novo; it asks only whether the Board’s conclusions are reasonably grounded in the record. That deference is particularly significant in classification disputes like this one: if the record reasonably supports the Board’s finding that Macri is not managerial, the court must affirm, even if another view could also be plausible.

The opinion also notes a structural feature of NLRB enforcement: the Board’s orders have no force of law until enforced by a federal court of appeals. (See 29 U.S.C. § 160(e); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48 (1938).) This underscores why the standard of review is so important—federal courts act as gatekeepers for Board orders.

C. Application of the Managerial-Employee Standard to Macri

1. What Macri could not do

The Board and the Fourth Circuit focused sharply on what Macri lacked in terms of authority:

He was not permitted to formulate or effectuate management policy. He did not design the training curriculum or set safety policies.
He could not alter the curriculum or drills on the range cards without supervisory approval.
He played no role in selecting students for training.
He was prohibited from independently disciplining students in any meaningful way. He could file reports but not impose formal sanctions.
He could not decide whether a student remained in or was removed from the training program; those decisions belonged to higher-level management.

These constraints show Macri to be a classic frontline instructor implementing policies and procedures crafted by others, not a policymaker or policy implementer in the sense contemplated by Bell Aerospace and Yeshiva.

2. What Macri could do: limited, safety-driven discretion

Macri had three main areas of discretion:

Immediate safety interventions. He could temporarily remove a student from live fire if he observed a safety violation. The court characterizes this authority as analogous to that of a classroom teacher removing a disruptive student to preserve safety and order, not managerial control.
Filing “spot reports.” He could document misconduct (like a student smelling of alcohol). But those reports fed into managerial decisions; they did not constitute discipline by themselves.
Professional judgment in instruction. Within the rigid framework of a prescribed curriculum and range cards, he could adapt his teaching techniques and make on-the-spot judgments inherent in any professional role.

The court stresses that such discretion is precisely the kind that Yeshiva says does not transform an employee into a managerial one. It is “routine discharge of professional duties in projects to which they have been assigned,” falling within the “scope of the duties routinely performed by [those] similarly situated.” (444 U.S. at 690.)

3. Analogy to non-managerial classroom teachers

A key move in the court’s reasoning is the analogy between firearms instructors and ordinary classroom teachers:

Both can remove a student temporarily to maintain safety or order.
Neither can suspend, expel, or otherwise permanently exclude students without involvement of higher-level decision-makers.
Both operate under curricula and policies set by administrators, with limited room for deviation.

The court emphasizes that the authority to remove a student temporarily is particularly critical in weapons training, where physical safety is at stake and interventions must be immediate. Yet this heightened need for safety interventions does not elevate the role to managerial status; if anything, it underscores why such frontline employees need NLRA protection to be able to raise systemic safety concerns without fear.

D. The Court’s Treatment of Constellis’s Arguments

The Fourth Circuit dispatches Constellis’s remaining contentions succinctly.

1. Reliance on Wolf Creek Nuclear Operating Corp.

Constellis contended that the Board improperly relied on its prior decision in Wolf Creek Nuclear Operating Corp., 349 N.L.R.B. 686 (2006), which addressed similar issues of managerial status in a nuclear power setting. The court disagrees:

The Board merely used Wolf Creek as a “useful analysis” in a “similar setting,” not as a rigid template.
It is well within the Board’s expertise to draw analogies among safety-critical, heavily regulated operational environments (like nuclear plants and weapons ranges) when evaluating managerial status.

2. Alleged results-oriented decision-making by the ALJ

Constellis also argued that the ALJ was engaged in outcome-driven reasoning. The court finds no support for this accusation in the record:

The ALJ applied the correct legal standard for managerial status.
The factual findings were adequately supported by the evidence and were later affirmed by the Board.
The court’s role, under the substantial evidence standard, is not to second-guess the ALJ’s weighing of credibility absent clear error, but to ensure that a reasonable mind could accept the Board’s conclusions.

Thus, the court finds no basis to disturb the Board’s adoption of the ALJ’s findings and conclusions.

E. Precedents Cited and Their Influence

1. NLRB v. Bell Aerospace Co. (1974)

Bell Aerospace is the foundational managerial-employee case. It:

Created the managerial employee exception.
Defined managerial employees as those who “formulate and effectuate” management policies.
Emphasized that classification turns on actual job duties and relationship to management.

The Fourth Circuit uses Bell Aerospace as the starting point to frame the question: did Macri “formulate and effectuate” Constellis’s policies, or was he simply carrying out instructions within a narrow sphere of discretion?

2. NLRB v. Yeshiva University (1980)

Yeshiva refines Bell Aerospace, particularly by:

Distinguishing between policy-making and routine professional judgment.
Clarifying that significant professional discretion does not automatically equal managerial authority.

The Fourth Circuit relies on Yeshiva’s language to articulate what it means to “represent management interests” in a managerial sense and to underscore that Macri’s responsibilities fall squarely on the non-managerial side of the line.

3. Circuit precedent and other Supreme Court cases on narrow interpretation of exceptions

The court’s insistence that the managerial exception be construed narrowly is anchored in:

University of Southern California v. NLRB (D.C. Cir.)
David Wolcott Kendall Memorial School v. NLRB (6th Cir.)
Holly Farms Corp. v. NLRB (U.S. Supreme Court)
Entergy Gulf States, Inc. v. NLRB (5th Cir.)

Collectively, these authorities support a presumption of coverage for workers and a caution against broad readings of exclusionary categories. The Fourth Circuit’s adoption of that consensus solidifies a uniform national approach: managerial status is an exception, not a readily available classification.

4. NLRB v. HQM of Bayside, LLC and Biestek / Consolidated Edison

These cases are invoked to clarify the standard of review:

HQM of Bayside confirms that managerial-status determinations are reviewed under the substantial evidence standard.
Biestek and Consolidated Edison define substantial evidence in deferential terms, supporting the court’s deference to the Board’s expertise in employee classification questions.

5. Retaliation framework: RGC (USA) Mineral Sands and Wright Line

Although the managerial-status question is dispositive on appeal, the opinion briefly notes the framework governing Section 8(a)(1) retaliation claims:

Under RGC (USA) Mineral Sands, Inc. v. NLRB, 281 F.3d 442, 448 (4th Cir. 2002), applying Wright Line, the General Counsel must show that protected activity was a “substantial or motivating factor” in the adverse action. Retaliation need not be the only motive.
The Board had already concluded that standard was met; Constellis did not challenge that determination on appeal. Thus the only live issue was Macri’s status as an “employee” versus a managerial employee.

6. Myers v. Bethlehem Shipbuilding: Enforceability of Board orders

The opinion also cites Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938), and 29 U.S.C. § 160(e), to emphasize that NLRB orders are not self-executing: they require enforcement by a court of appeals. The Fourth Circuit’s granting of enforcement here is what transforms the Board’s order into legally binding relief for Macri.

V. Clarifying Key Legal Concepts

A. “Concerted Activities for Mutual Aid or Protection”

Under Section 7 of the NLRA (29 U.S.C. § 157), employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” In practical terms:

“Concerted” means activity undertaken together with, or on behalf of, other employees (e.g., group complaints, joint letters, discussions aimed at improving working conditions).
“Mutual aid or protection” covers efforts to improve workplace safety, pay, hours, or other conditions of employment.

Macri’s jointly signed letter with other instructors about the ricochet hazard is a textbook example of concerted activity for mutual aid or protection: a group of employees raising a shared workplace safety concern.

B. “Managerial Employees” vs. “Supervisors”

It is important to distinguish:

Supervisors (explicitly excluded in 29 U.S.C. § 2(11)): individuals with authority, in the interest of the employer, to hire, fire, discipline, or responsibly direct other employees, using independent judgment.
Managerial employees (judicially created in Bell Aerospace): individuals who formulate and effectuate management policies and represent management interests in a policymaking or policy-implementing sense.

Both groups are excluded from NLRA coverage, but for different reasons. Supervisors exercise front-line control over employees; managerial employees occupy a policy sphere. Macri fit in neither category:

He could not hire, fire, or formally discipline.
He did not set or implement policy; he followed it.

C. “Substantial Evidence” Standard

“Substantial evidence” is a deferential standard that asks:

Is there such relevant evidence as a reasonable mind might accept as adequate to support the Board’s conclusion?

It does not require:

That the evidence preponderate one way or another.
That alternative interpretations be impossible.

If the Board’s view is reasonably supported, the court must affirm—even if the employer’s alternative view is also plausible. In this case, once the court found substantial evidence that Macri lacked policymaking and policy-implementing authority, it was obliged to uphold the Board’s classification.

D. Wright Line and Mixed-Motive Retaliation

Under Wright Line (an NLRB decision approved by the Supreme Court in NLRB v. Transportation Management Corp.), the General Counsel must show:

The employee engaged in protected activity.
The employer knew of this activity.
The employer took adverse action (e.g., termination).
The protected activity was a substantial or motivating factor in the adverse action.

If that showing is made, the burden shifts to the employer to prove that it would have taken the same action absent the protected activity (e.g., solely due to insubordination). Here:

The ALJ and Board concluded that Macri’s safety complaints played a substantial role in his suspension and termination.
The court underscores that retaliation need not be the exclusive motive; a mixed motive suffices under RGC Mineral Sands.

Because Constellis did not challenge those findings on appeal, the only remaining question was whether Macri was protected by the Act at all—i.e., whether he counted as an “employee” rather than a managerial employee.

VI. Impact and Future Implications

A. Doctrinal Significance in the Fourth Circuit

This is the Fourth Circuit’s first published decision construing the managerial employee exception. As such, it sets the governing standard for:

Maryland
Virginia
West Virginia
North Carolina
South Carolina

Key doctrinal takeaways:

The managerial exception is narrow and must be carefully applied to avoid undermining the NLRA’s broad protection for “any employee.”
The inquiry is intensely fact-specific, focused on actual job duties and effective policymaking authority.
Routine professional discretion—even in safety-critical environments—is insufficient for managerial status absent policy-level responsibilities.

B. Implications for Safety-Sensitive and Training-Intensive Industries

The case has particular resonance for industries where:

Safety risks are acute (weapons training, nuclear facilities, heavy industry, transportation).
Frontline instructors or operators exercise immediate safety judgment but have no role in setting organizational policies or curricula.

NLRB v. Constellis signals that:

Employees in such environments remain protected by the NLRA when they engage in concerted safety advocacy.
Employers cannot strip NLRA protection merely by pointing to necessary, real-time safety discretion.

This aligns with the Board’s prior approach in Wolf Creek Nuclear Operating Corp., where employees in a highly technical, safety-critical setting were also held to be non-managerial.

C. Protection of Workplace Safety Whistleblowing

The decision reinforces that:

Concerted complaints about unsafe working conditions—whether pandemic-related PPE issues or physical hazards like bullet ricochets—are squarely within the core of NLRA-protected activity.
Employees who lack authority to correct hazards themselves must be free to bring those issues to management without fear of retaliation.

The court’s description of Macri’s situation makes clear that the NLRA is a critical layer of protection for safety-related whistleblowing, supplementing other safety regimes (such as OSHA) by prohibiting employer retaliation for raising safety concerns collectively.

D. Limiting Employer Misclassification Arguments

Employers sometimes seek to classify key employees as supervisors, managerial, or independent contractors to avoid NLRA obligations. This case raises the bar for such classification in the Fourth Circuit:

Employers must show actual policy-formulating or policy-implementing authority, not merely professional judgment or safety discretion.
Labeling an employee as “lead,” “instructor,” or even “manager” is not determinative; the functional analysis governs.
Attempts to stretch the managerial exception to cover non-policymaking professionals will likely be rejected as inconsistent with the NLRA’s broad coverage.

E. Relationship to Union Organizing and Collective Action

Although the case arises from an individually filed charge rather than a union-organizing campaign, its doctrine is directly relevant to:

Organizing efforts among instructors, trainers, or other professional staff in private security and training companies.
Collective efforts by safety professionals to improve working conditions.

By confirming that such individuals remain “employees” under the Act, the decision supports their right to:

Form or join unions.
Engage in concerted safety advocacy.
Seek improved conditions without fear that their professional judgment will be rebranded as “managerial” for NLRA purposes.

VII. Conclusion

NLRB v. Constellis, LLC makes a significant contribution to NLRA jurisprudence in the Fourth Circuit by:

Adopting and clarifying the Supreme Court’s managerial-employee doctrine from Bell Aerospace and Yeshiva, and explicitly committing to a narrow construction of that exception.
Holding that a firearms and tactics instructor—despite having real-time safety authority and professional discretion—is not a managerial employee where he does not formulate or effectuate employer policy and lacks disciplinary and curricular control.
Reinforcing strong protection for concerted safety advocacy, including pandemic-related and physical safety complaints, under Section 8(a)(1).

The court’s decision underscores a core principle of the NLRA: most workers, including professionals in safety-sensitive positions, remain within the Act’s protective ambit unless their duties truly align them with management at the policy level. The managerial exception is reserved for genuine policy-makers and policy-implementers, not for those whose responsibilities are confined to implementing instructions and safeguarding immediate workplace safety. As a result, Constellis will likely serve as an important precedent limiting overbroad employer claims of managerial status and strengthening NLRA protections for safety-related concerted activity in the Fourth Circuit and beyond.