Fourth Circuit Adopts Narrow Construction of NLRA “Managerial Employee” Exception: Commentary on Constellis, LLC v. NLRB

Fourth Circuit Adopts Narrow Construction of NLRA “Managerial Employee” Exception: Commentary on Constellis, LLC v. NLRB

I. Introduction

The Fourth Circuit’s published decision in Constellis, LLC v. National Labor Relations Board marks the court’s first direct construction of the National Labor Relations Act’s judicially created “managerial employee” exception. In doing so, the court firmly aligns itself with other circuits in construing that exception narrowly and reaffirms the broad reach of NLRA protections to workers who raise safety concerns, even in highly regulated, safety‑sensitive environments like firearms training for federal security officers.

The case arises from the termination of Michael Macri, a firearms and tactics instructor employed by Constellis, LLC (doing business as ACADEMI Training Center, LLC), a private contractor that both provides security services and trains security officers in weapons handling for deployment at federal government facilities. Macri repeatedly raised concerns about serious safety and health issues at Constellis’s training ranges—first about COVID‑19 personal protective equipment (PPE) policies, then about an ongoing ricochet hazard at the live‑fire ranges that had already caused injuries. After a heated confrontation with supervisors over the unresolved ricochet problem, Constellis suspended and then terminated him.

Macri filed an unfair labor practice charge, alleging that Constellis retaliated against him in violation of NLRA § 8(a)(1) for engaging in protected “concerted activities for the purpose of mutual aid or protection” by protesting unsafe conditions. The NLRB’s Administrative Law Judge (ALJ) and then the Board itself agreed, finding that his safety complaints were protected concerted activity and that retaliation for those complaints was a substantial motive for his discharge. Constellis, however, argued that Macri was a “managerial employee” who falls outside the NLRA’s definition of “employee” and thus receives no protection.

On enforcement and cross‑petition for review, the only question the Fourth Circuit treated as live was whether Macri fell within the judicially recognized managerial‑employee exception. The court held that the Board’s determination that he was not a managerial employee was supported by substantial evidence, granted enforcement of the Board’s order, and denied Constellis’s petition for review.

This decision is significant for three primary reasons:

  • It expressly adopts a narrow reading of the “managerial employee” exception in line with the Supreme Court and other circuits.
  • It clarifies that substantial discretion in safety‑related classroom control, within a highly structured curriculum, does not equate to “formulat[ing] and effectuat[ing] management policies.”
  • It reinforces that employees in safety‑sensitive settings—here, weapons training—remain covered employees whose collective safety complaints are protected concerted activity under the NLRA.

II. Summary of the Opinion

A. Factual Background

Constellis employs security officers and contracts them to federal government sites. It also runs firearms and tactics training programs for those officers. Macri worked as one of the firearms and tactics instructors, teaching small groups of students to handle various weapons safely.

Key factual points about Macri’s job and authority:

  • Curriculum control: The instructors were bound to curricula set by Constellis management. The company also issued “range cards” specifying drills and exercises to be run. Instructors could not deviate from these materials without prior supervisory approval.
  • Limited discretion: Instructors had some on‑the‑spot discretion:
    • They could remove a student from a live‑fire exercise if they observed a safety violation.
    • They could submit “spot reports” about student misconduct (e.g., Macri reported a student who smelled of alcohol).
    But they could not:
    • Independently discipline students beyond these immediate interventions.
    • Remove students from the training program or decide whether students would remain enrolled.
  • Discipline of Macri himself: Constellis policy prohibited instructors from imposing their own discipline on students; only supervisors could do so. Macri was formally disciplined for making students do “burpees” when they returned late from a break, illustrating the limits on his disciplinary authority.

Regarding safety concerns:

  • COVID‑19 PPE issue: Early in the COVID‑19 pandemic, Constellis prohibited instructors and students from wearing personal protective equipment. At a staff meeting, Macri questioned this prohibition. Soon afterward, a supervisor documented an unrelated, months‑old workplace infraction by Macri, suggesting possible retaliatory animus.
  • Ricochet hazard: Several months later, Macri and other instructors collectively sent a letter to Constellis management describing a serious ricochet problem at the firing ranges. Bullets and fragments were ricocheting back during shooting exercises, and some shooters had already been struck. The letter described the situation as a “serious but correctable life hazard to both students and instructors,” warned of potential “injury or death,” and requested immediate remediation.
  • Employer response: Constellis temporarily closed the most dangerous range and later claimed to have corrected the problem. But the ricochet issue persisted.
  • Confrontation and discharge: During a later meeting, Macri confronted his supervisors about Constellis’s failure to address the ricochet hazard adequately. He raised his voice and yelled at a supervisor. Shortly after, Constellis suspended and then terminated him, asserting insubordination as its reason.

B. Procedural History

Macri filed a charge with the NLRB Regional Director in Maryland, alleging that Constellis unlawfully terminated him for engaging in protected concerted activity—raising safety issues affecting both instructors and students. The Regional Director investigated, found the charge meritorious, and issued a complaint alleging violation of § 8(a)(1) of the NLRA, which prohibits employers from interfering with employees’ § 7 rights to engage in concerted activities for mutual aid or protection.

Constellis defended on two main grounds:

  • It claimed the discharge was for insubordination rather than for protected activity, even while conceding that Macri had repeatedly complained about safety problems.
  • It asserted that Macri was a “managerial employee” excluded from NLRA protection and therefore not entitled to invoke § 7 or § 8(a)(1).

After a hearing, the ALJ found:

  • Macri was an “employee” under the NLRA, not a managerial employee.
  • His protected safety‑related concerted activity was a substantial or motivating factor in Constellis’s decision to suspend and terminate him.
  • Constellis had therefore committed unfair labor practices in violation of § 8(a)(1).

The Board affirmed and adopted the ALJ’s findings with minor modifications. The NLRB General Counsel then applied to the Fourth Circuit for enforcement of the Board’s order (which included reinstatement and backpay), and Constellis cross‑petitioned for review, focusing its challenge on the Board’s denial of managerial‑employee status.

C. Holding

The Fourth Circuit:

  • Applied the “substantial evidence” standard of review both to the Board’s factual findings and to its mixed question of law and fact regarding managerial status.
  • Held that the Board correctly articulated the governing legal standard for the managerial‑employee exception as set forth by the Supreme Court.
  • Concluded that substantial evidence supported the Board’s determination that Macri was not a managerial employee because:
    • He did not formulate or effectuate management policies.
    • He could not change curricula or drills on his own.
    • He had no authority over student selection, continuation in, or removal from the program.
    • His safety‑related discretion was akin to that of a classroom teacher maintaining order and safety, not to that of a policy‑level manager.
  • Rejected Constellis’s remaining arguments, including its criticism of the Board’s reliance on Wolf Creek Nuclear Operating Corp. and its claims of results‑oriented adjudication.
  • Granted the Board’s application for enforcement and denied the cross‑petition for review, leaving the reinstatement and backpay order intact.

III. Detailed Analysis

A. Legal Framework

1. NLRA protections and concerted activity

The NLRA’s core protection, set out in § 7 (29 U.S.C. § 157), guarantees employees “the right to engage in … concerted activities for the purpose of … mutual aid or protection.” This provision has long been understood to protect workplace safety complaints—especially when raised collectively or on behalf of coworkers—as “concerted activity.”

Section 8(a)(1) (29 U.S.C. § 158(a)(1)) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees” in exercising their § 7 rights. Terminating an employee because of protected concerted activity is a classic violation of this provision.

In this case, the Board relied on the well‑established Wright Line framework (cited by the court and cross‑referenced via RGC (USA) Mineral Sands, Inc. v. NLRB, 281 F.3d 442 (4th Cir. 2002)). Under that framework:

  • The General Counsel must show that:
    • The employee engaged in protected activity;
    • The employer knew of the protected activity; and
    • 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 it would have taken the same action even absent the protected activity.

The Fourth Circuit notes that for a § 8(a)(1) violation, retaliation need not be the sole motive—only “a substantial or motivating factor.”

2. “Employee” status under the NLRA and exclusions

Section 2(3) of the NLRA (29 U.S.C. § 152(3)) broadly defines “employee” and expressly excludes certain categories (e.g., agricultural laborers, independent contractors, and supervisors). “Managerial employees” are not listed among the express exclusions in the statute.

Nevertheless, the Supreme Court in NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), recognized a judicially created managerial‑employee exception, based on the understanding that Congress implicitly regarded such employees as sufficiently aligned with management that they should not be included in the bargaining unit or the protections envisioned by the Act.

3. The managerial‑employee exception

The governing definition of a managerial employee—quoted and applied by the Fourth Circuit—is drawn from Bell Aerospace:

Managerial employees are those who “formulate and effectuate management policies by expressing and making operative the decisions of their employer.”

The Court elaborated further in NLRB v. Yeshiva University, 444 U.S. 672 (1980), where it examined whether university faculty were “managerial” because of their role in academic governance. Yeshiva clarified:

  • Employees whose decisionmaking is limited to “the routine discharge of professional duties in projects to which they have been assigned” are generally not managerial.
  • Having “substantial expertise, responsibility for planning, or authority to direct and evaluate other employees” does not, without more, make someone managerial.
  • The core inquiry is whether the employee’s responsibilities are so closely aligned with management interest that the employee “represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy.”

In Constellis, the Fourth Circuit expressly adopts this Bell Aerospace/Yeshiva standard and emphasizes that the focus must be on the employee’s “actual job responsibilities, authority, and relationship to management” (quoting Bell Aerospace, 416 U.S. at 290 n.19).

4. Narrow construction of NLRA exclusions

The opinion underscores a key interpretive principle: statutory and judicially recognized exclusions from NLRA coverage must be construed narrowly so as not to erode the Act’s broad protections.

The court cites and aligns with:

  • 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 NLRA 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 conflict with § 2(3)’s inclusive language covering “any employee,” including professionals).
  • Holly Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996) (courts must ensure that exemptions from NLRA coverage are not so expansively interpreted as to deny protection to workers the statute was designed to reach).
  • Entergy Gulf States, Inc. v. NLRB, 253 F.3d 203, 208 (5th Cir. 2001) (the statutory supervisor exception itself is not construed broadly, lest employees lose rights the NLRA seeks to protect).

These authorities collectively reinforce a presumption of coverage: unless an employee clearly falls within a well‑defined exception, the NLRA’s protections apply. Constellis imports this interpretive caution into the Fourth Circuit’s first direct treatment of the managerial exception.

B. Standard of Review and Deference to the NLRB

Under 29 U.S.C. § 160(f), the court must treat the Board’s factual findings as conclusive if supported by “substantial evidence on the record considered as a whole.” The court applies the same standard to mixed questions of law and fact—like managerial‑employee status—so long as the Board has articulated the correct legal test.

Drawing on Biestek v. Berryhill, 587 U.S. 97 (2019), which in turn quotes Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938), the court defines “substantial evidence” as:

“Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Moreover, the court notes a structural feature of NLRA adjudication: Board orders are not self‑executing. Under 29 U.S.C. § 160(e) and Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48 (1938), the NLRB’s General Counsel must apply to a court of appeals for enforcement, and only then, upon affirmance, does the order acquire the force of law. This procedural context underscores the importance of appellate deference where the Board has applied settled Supreme Court standards to a factual record.

In Constellis, the Fourth Circuit finds:

  • The Board correctly identified and applied the Bell Aerospace/Yeshiva test for managerial status.
  • Its conclusions about Macri’s non‑managerial status are supported by substantial evidence in the record.

Accordingly, the court does not reweigh the facts or substitute its judgment but instead affirms the Board’s determination.

C. Precedents Cited and Their Influence

1. NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974)

Bell Aerospace is the foundational case creating the managerial‑employee exception. There, the Supreme Court held that certain “purchasing agents” who essentially determined purchasing policy and wielded substantial discretion over procurement were managerial employees not covered by the NLRA. The Court reasoned that Congress implicitly intended to exclude from coverage employees who:

  • Formulate and effectuate management policies; and
  • Make operative their employer’s strategic decisions.

In Constellis, the Fourth Circuit borrows this definition directly and uses it as the touchstone for evaluating Macri’s role. The core question becomes: did Macri formulate or effectuate Constellis’s policies in a manner comparable to the policy‑shaping officials at issue in Bell Aerospace, or was he merely executing predesigned training protocols?

2. NLRB v. Yeshiva University, 444 U.S. 672 (1980)

Yeshiva refined the managerial‑employee analysis in the context of faculty governance at a private university. The Court found that Yeshiva’s full‑time faculty were managerial employees because they exercised authority over key academic policies: curriculum, grading standards, admissions criteria, and other central institutional decisions.

But the Court also provided important limiting principles:

  • Professional employees performing routine duties—even with significant discretion within professional norms—are not automatically managerial.
  • Managerial status requires that the employee “represent management interests” by taking or recommending discretionary actions that “effectively control or implement employer policy.”

The Fourth Circuit quotes these limiting principles and uses them to frame Macri’s role:

  • His duties—teaching set curricula, administering standardized drills, making spot safety interventions—are “routine discharge of professional duties” in a safety‑sensitive instructional context.
  • His authority is closely circumscribed by the prescribed curricula and range cards; any deviation requires supervisory approval.
  • He does not make policy decisions about curriculum content, student selection, disciplinary policies, or safety protocols; he can only react within the given framework.

Under Yeshiva, these facts pull strongly against classifying him as managerial.

3. Circuit court cases narrowing the exception

The Fourth Circuit then aligns with its sister circuits in construing the managerial‑employee exception narrowly.

  • University of Southern California v. NLRB, 918 F.3d 126 (D.C. Cir. 2019):

    USC addressed, among other issues, the scope of managerial and supervisory exclusions in academic contexts. The D.C. Circuit cautioned that the managerial exception cannot be read so broadly that it “chips away at the NLRA’s protections.” Constellis adopts this admonition and uses it as a guidepost against expansive interpretations.

  • David Wolcott Kendall Memorial School v. NLRB, 866 F.2d 157 (6th Cir. 1989):

    The Sixth Circuit recognized that the NLRA covers “any employee,” including professional employees, and that the managerial exception must therefore be “narrowly construed” to avoid undermining this broad coverage. This is directly quoted and endorsed in Constellis.

  • Holly Farms Corp. v. NLRB, 517 U.S. 392 (1996):

    Though concerning a statutory exemption for agricultural laborers, Holly Farms emphasized that exceptions to NLRA coverage must not be interpreted so broadly that workers the Act was “designed to reach” lose protection. The Fourth Circuit uses this general principle to support a narrow reading of the managerial exception.

  • Entergy Gulf States, Inc. v. NLRB, 253 F.3d 203 (5th Cir. 2001):

    Entergy concerned the statutory definition of “supervisor,” another category excluded from the NLRA. The Fifth Circuit held that the supervisor exception should not be read expansively; otherwise, many workers would improperly lose NLRA rights. Constellis uses this reasoning by analogy to caution against expanding the judicially created managerial exception.

Collectively, these cases serve as a doctrinal backdrop for the Fourth Circuit’s central move: expressly holding that the managerial‑employee exception must be construed narrowly and “with care,” given the NLRA’s broad definitional language and remedial purpose.

4. Other precedents: standard of review and unfair labor practice analysis

  • NLRB v. HQM of Bayside, LLC, 518 F.3d 256 (4th Cir. 2008):

    Cited for the proposition that the substantial‑evidence standard applies to mixed questions like managerial status. This case supports the court’s deferential stance toward the Board’s application of law to fact.

  • Biestek v. Berryhill, 587 U.S. 97 (2019), and Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938):

    Provide the modern and classic formulations of “substantial evidence,” which guide the Fourth Circuit’s review of the record.

  • RGC (USA) Mineral Sands, Inc. v. NLRB, 281 F.3d 442 (4th Cir. 2002), and Wright Line, 251 N.L.R.B. 1083 (1980):

    Cited for the causation standard in § 8(a)(1) cases and the burden‑shifting framework for proving discriminatory motivation. While the appellate court does not revisit the full Wright Line analysis—since Constellis focused on managerial status—the citation underscores that retaliation need only be a “substantial or motivating factor,” not the exclusive cause.

  • Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938):

    Emphasized to explain that the NLRB lacks direct enforcement authority; it must seek judicial enforcement, and the court’s role is central in giving effect to Board orders.

  • Wolf Creek Nuclear Operating Corp., 349 N.L.R.B. 686 (2006):

    The Board relied on this NLRB decision as a useful analysis of managerial status in a safety‑oriented, technical setting. The Fourth Circuit rejects Constellis’s criticism of that reliance, indicating that consulting prior Board precedent in analogous factual scenarios is proper and not evidence of bias or results‑oriented reasoning.

D. The Court’s Legal Reasoning Applied to Macri

1. Focus on “actual job responsibilities, authority, and relationship to management”

Following Bell Aerospace and Yeshiva, the court concentrates on what Macri actually did in the workplace, not his job title or the importance of the subject matter (firearms training). The question is not whether his work is critical or safety‑sensitive, but whether his role in the organizational hierarchy is one of policy formulation and implementation on behalf of management.

The court identifies several decisive features:

  • No policy‑making authority: Macri did not create or revise Constellis’s training policies, safety policies, disciplinary policies, or range‑usage policies.
  • No curriculum control: He taught courses according to management‑mandated curricula and “range cards.” Any deviations required prior supervisor approval.
  • No role in student selection or program retention: Macri had no say in which students entered the training or whether they could remain enrolled; such decisions resided with higher‑level decisionmakers.
  • Limited disciplinary authority: He could:
    • Temporarily remove a student from a live‑fire situation for immediate safety reasons.
    • File spot reports about misconduct.
    But he could not:
    • Impose discipline beyond these immediate interventions.
    • Determine lasting consequences, such as removal from the program or employment.

These facts led the Board and the court to conclude that Macri’s duties fell squarely within “the routine discharge of professional duties in projects to which [he had] been assigned” (to use Yeshiva’s language), rather than embodying managerial policy‑formulation or policy‑effectuation.

2. Safety authority as “classroom management,” not managerial policy

A central argument by Constellis was that Macri’s authority to remove students from live‑fire exercises and to intervene in safety violations made him a managerial employee. The court categorically rejects this position.

It analogizes Macri’s authority to that of a typical teacher:

  • Teachers can take immediate steps—such as removing disruptive students from a classroom—to maintain order and safety.
  • But they generally cannot:
    • Suspend or expel students;
    • Set school disciplinary policy; or
    • Determine curriculum policy at the institutional level.
  • The teacher’s control is “on the ground,” episodic, and directed at implementing preexisting institutional policies, not formulating them.

The court views Macri’s role similarly:

  • He could temporarily remove a student from the firing line to prevent immediate harm—especially critical given the inherent danger of live‑fire training.
  • However, his actions were confined “within the scope of the duties routinely performed by those similarly situated” instructors, and always under policies set by higher management.

Thus, his safety‑related discretion is not the kind of discretion that defines managerial employees; it is consistent with the role of non‑managerial professional employees entrusted with immediate operational safety in a bounded environment.

3. The importance of the NLRA’s protective purpose

The court repeatedly connects its interpretive choices to the NLRA’s protective aims. It frames Macri’s conduct—raising serious safety concerns regarding COVID‑19 PPE and range ricochet hazards—as paradigmatic “concerted activity for mutual aid or protection.”

Significantly, the court notes:

  • Macri and his coworkers lacked authority to fix the ricochet problem themselves.
  • They were obliged to take their concerns “to the attention of those at Constellis with the power to address the issues”—classic NLRA‑protected behavior.

If employees charged with front‑line safety oversight could be deemed managerial simply because they can stop unsafe work temporarily, then some of the workers most in need of NLRA protection against retaliation for raising safety concerns would find themselves excluded from the Act’s reach. The court’s narrow reading of the managerial exception prevents that erosion of protection.

4. Application of substantial evidence review

The court emphasizes that its role is not to second‑guess the Board’s factual judgments where the Board has properly applied Supreme Court precedent. It confirms that the Board:

  • Accurately stated the Bell Aerospace/Yeshiva standard.
  • Analyzed Macri’s actual responsibilities and authority.
  • Supported its conclusions with evidence in the record:
    • Formal curricula and range cards dictated by management;
    • Documented limits on instructor discipline (including Macri’s own discipline for imposing physical exercise sanctions);
    • Employer testimony regarding who had authority to set or change policies, select or remove students, and design training content.

This body of evidence easily satisfies the “reasonable mind” test for substantial evidence under Biestek, compelling judicial deference.

E. Treatment of Constellis’s Remaining Arguments

1. Critique of reliance on Wolf Creek Nuclear Operating Corp.

Constellis argued that the Board erred by relying on its own precedent in Wolf Creek Nuclear Operating Corp., 349 N.L.R.B. 686 (2006), which involved managerial‑status analysis in a similarly safety‑critical environment. The Fourth Circuit dismisses this contention summarily:

  • It holds that the Board’s citation to and reliance on Wolf Creek was entirely proper.
  • Using prior Board decisions to inform analysis of similar questions is a normal and expected part of administrative adjudication.

The court’s treatment here signals respect for the Board’s institutional competence and for consistent application of its own precedent.

2. Allegation of “results‑oriented” decision‑making

Constellis also accused the ALJ of “results‑oriented” reasoning—essentially, of bending the analysis to reach a pro‑employee outcome. The Fourth Circuit rejects this accusation, finding:

  • No evidence that the ALJ or the Board deviated from established legal standards.
  • No indication that factual findings were manipulated or unsupported.

This response reinforces that the Board’s choice to favor a narrow managerial exception is not a policy improvisation but a faithful application of Supreme Court doctrine and statutory purpose.

F. Impact and Implications

1. Clarifying the managerial‑employee exception in the Fourth Circuit

Constellis is the Fourth Circuit’s first articulated interpretation of the managerial‑employee exception. Its main doctrinal contribution is clear:

  • The exception is to be construed narrowly.
  • An employee is managerial only if they:
    • Formulate and effectuate management policy; or
    • Represent management interests by taking or recommending discretionary actions that effectively control or implement employer policy.
  • Professional judgment and operational discretion within fixed policies—even in safety‑critical roles—do not, by themselves, confer managerial status.

Future cases in the Fourth Circuit involving engineers, nurses, teachers, trainers, and other professionals with localized discretion are likely to be guided by this framework. Employers seeking to classify such employees as managerial will need to show that these workers actually make or implement policy at a strategic, institution‑wide level.

2. Implications for safety‑sensitive and defense‑related workplaces

The case has particular salience for industries where:

  • Safety hazards are substantial (e.g., weapons training, nuclear facilities, heavy industry, healthcare); and
  • Front‑line staff are given authority to halt work or remove participants when safety is compromised.

Constellis makes clear that:

  • The mere grant of immediate safety authority does not transform front‑line employees into managerial staff.
  • Those employees still retain NLRA protection when they collectively raise safety concerns up the chain of command.

This is particularly important in defense and security contexts, where contractors might be tempted to argue that specialized training roles or field supervisors are inherently managerial due to the critical nature of their work. The Fourth Circuit’s analysis resists this conflation.

3. Reinforcement of protections for workplace safety complaints

The opinion also underscores that expressing concerns about unsafe or unlawful working conditions is classic protected concerted activity. This includes:

  • COVID‑19‑related health and safety concerns, such as PPE policies.
  • Structural or environmental hazards, like the ricochet problem at the Constellis ranges.

In an era where occupational health and safety issues (especially pandemics, industrial accidents, and environmental hazards) can be contentious and politically charged, the case reaffirms that workers’ group safety complaints lie at the heart of NLRA protections.

4. Practical guidance for employers and employees

For employers:

  • Labeling a position as “manager,” “instructor,” or “lead” will not by itself exempt the job from the NLRA. Courts and the NLRB will examine:
    • Who sets policy;
    • Who has final authority over curriculum, disciplinary rules, and student/employee status;
    • Whether the employee’s discretion is routine and bounded or truly policy‑shaping.
  • Where employees can only implement predefined safety and training protocols and must escalate broader concerns to higher‑ups, they are likely to be “employees” under the Act.
  • Retaliating against such workers for raising safety concerns—even if the employer also points to alleged insubordination—carries substantial NLRA risk under the Wright Line standard.

For employees:

  • Front‑line instructors, trainers, and similar professionals in the Fourth Circuit can be more confident that they are protected by the NLRA when raising collective safety concerns, absent clear evidence that they are true policy‑makers.
  • Group letters, joint complaints, and coordinated meetings with management about safety issues are quintessentially protected concerted activities.

IV. Complex Concepts Simplified

1. “Concerted activities for mutual aid or protection”

This phrase from NLRA § 7 means workers acting together—or one worker acting on behalf of others—to advance shared workplace interests. Examples include:

  • Jointly complaining about unsafe conditions (as Macri and his fellow instructors did in their ricochet‑hazard letter).
  • Asking for better protective equipment or safer procedures.
  • Supporting or forming a union, or engaging in collective bargaining.

The key is that the activity concerns workplace issues and is undertaken collectively or in a representative fashion.

2. Managerial employee vs. supervisor vs. rank‑and‑file employee

  • Rank‑and‑file employee: The default category; covered by the NLRA. These workers do their jobs under existing policies and may be supervised but do not themselves make policy or count as statutory “supervisors.”
  • Supervisor (statutory exclusion): Defined in 29 U.S.C. § 152(11), supervisors have authority (in the interest of the employer and using independent judgment) to hire, fire, discipline, assign, reward, or direct other employees. Supervisors are excluded from NLRA protection.
  • Managerial employee (judicial exclusion): Recognized in Bell Aerospace, these employees formulate and effectuate management policies. They are excluded from NLRA coverage because their interests align closely with upper management.

In Constellis, Macri is treated as a rank‑and‑file employee with professional responsibilities, not as a supervisor or managerial employee.

3. Substantial evidence standard

“Substantial evidence” is a deferential standard courts use when reviewing factual findings by administrative agencies like the NLRB. It means:

Is there enough relevant evidence that a reasonable person could agree with the agency’s conclusion?

The court does not ask whether it would have reached the same conclusion from scratch; it only asks whether the decision is reasonable and supported by the record. If so, the court must uphold the agency’s factual determinations.

4. The Wright Line test for retaliatory motive

Wright Line is a framework the NLRB uses in retaliation cases:

  1. The General Counsel shows:
    • The worker engaged in protected activity;
    • The employer knew this; and
    • The protected activity was a substantial or motivating factor in the adverse action (e.g., discharge).
  2. The burden shifts to the employer to prove it would have taken the same action even without the protected activity.

In Constellis, the Board found that Macri’s safety complaints were a substantial or motivating factor in his suspension and termination, satisfying this test.

5. Why safety‑related discretion does not equal managerial status

It might seem intuitive that someone who can halt operations (e.g., stopping a firing exercise) must be “in charge” and therefore managerial. But under NLRA doctrine:

  • Having authority to pause work to prevent immediate harm is a form of operational control, often entrusted to non‑managerial professionals.
  • Managerial status requires something more: the power to set policy or make binding decisions for the organization in a way that represents management’s strategic interests.

Thus, a nurse who can refuse to administer a dangerous medication, an engineer who can halt a machine when it malfunctions, or a firearms instructor who can remove an unsafe shooter from the line typically remains an “employee,” not a managerial policy‑maker.

V. Conclusion

Constellis, LLC v. NLRB is a landmark decision for the Fourth Circuit in the field of labor law. It:

  • Formally adopts and applies the Supreme Court’s definition of managerial employees from Bell Aerospace and Yeshiva.
  • Joins other circuits in emphasizing that the managerial‑employee exception must be construed narrowly, to avoid eroding the NLRA’s broad coverage.
  • Holds that firearms and tactics instructors who operate under fixed curricula, with limited authority to address immediate safety concerns, do not “formulate and effectuate” management policies and thus remain protected “employees” under the Act.
  • Reaffirms that raising group safety concerns—about both public health (COVID‑19 PPE) and physical hazards (ricocheting bullets)—is classic protected concerted activity.
  • Demonstrates robust judicial deference to the NLRB’s fact‑finding and legal application when supported by substantial evidence.

By granting enforcement of the NLRB’s order and denying Constellis’s cross‑petition, the Fourth Circuit ensures that Macri receives reinstatement and backpay and sends a broader message: front‑line professionals, even in high‑risk, security‑sensitive environments, do not lose their NLRA rights merely because they possess the authority—and responsibility—to act immediately to protect safety. To be excluded as managerial employees, workers must genuinely occupy a policy‑making or policy‑implementing role on behalf of management. Absent that, the NLRA’s guarantees of concerted activity for mutual aid or protection remain firmly in place.

Case Details

Year: 2025
Court: Court of Appeals for the Fourth Circuit

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