NLRB v. Constellis, LLC

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 1, 2025
• Docket: 23-1861
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1861

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

CONSTELLIS, LLC, d/b/a ACADEMI Training Center, LLC,

Respondent.

No. 23-1925

On Application for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations Board. (05-CA-278218)

Argued: September 9, 2025 Decided: December 1, 2025

Before AGEE, HEYTENS, and BERNER, Circuit Judges. USCA4 Appeal: 23-1861 Doc: 46 Filed: 12/01/2025 Pg: 2 of 11

Application for enforcement granted, and cross-petition for review denied, by published opinion. Judge Berner wrote the opinion, in which Judge Agee and Judge Heytens joined.

ARGUED: Jared David Cantor, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner/Cross-Respondent. Michael MacHarg, Sr., KAUFMAN DOLOWICH LLP, Los Angeles, California, for Respondent/Cross-Petitioner. ON BRIEF: Joshua Counts Cumby, ADAMS AND REESE LLP, Nashville, Tennessee, for Petitioner/Cross-Respondent. Jennifer A. Abruzzo, General Counsel, Peter Sung Ohr, Deputy General Counsel, Ruth E. Burdick, Deputy Associate General Counsel, David Habenstreit, Assistant General Counsel, Milakshmi V. Rajapakse, Supervisory Attorney, Jared D. Cantor, Senior Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.

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BERNER, Circuit Judge:

The National Labor Relations Act protects the right of working people to engage in

“concerted activities” for the purpose of “mutual aid or protection.” 29 U.S.C. § 102.

Speaking out against unsafe or unlawful working conditions is one such concerted activity.

The National Labor Relations Act also protects workers against employer retaliation for

exercising this right. Not all workers enjoy this protection, however. Many are excepted,

either by the plain language of the statute or through judicial interpretation. This case

concerns the scope of one such exception: that for managerial employees.

Michael Macri worked as a firearms and tactics instructor for Constellis, Inc., a

company that trains security officers in the proper handling of weapons. At the outset of

the COVID-19 pandemic, Macri voiced concerns about Constellis’s lack of workplace

precautions. Later that same year, Macri and several of his instructor colleagues raised

significant safety concerns, including one involving firing ranges, to their supervisors. The

instructors complained that bullets were ricocheting back during shooting exercises,

putting instructors and students at grave risk. Indeed, several shooters had already been

struck by bullet fragments. After Macri complained, Constellis suspended and later

terminated him.

Macri filed a charge with the National Labor Relations Board, alleging that

Constellis had unlawfully terminated him in retaliation for exercising his right to engage

in protected concerted activity. The Board agreed and ordered Constellis to reinstate Macri

and pay him his lost wages. The National Labor Relations Board General Counsel filed

this application for enforcement of its order, and Constellis cross-petitioned for review.

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This case turns on one question: was Macri a managerial employee and thereby

excluded from the National Labor Relations Act’s protection against retaliation for

engaging in protected concerted activity? Because the Board’s conclusion that Macri was

not a managerial employee was supported by substantial evidence, we grant the Board’s

application for enforcement and deny Constellis’s cross-petition for review.

I. Background

A. Factual Background

Constellis is in the business of employing security officers and contracting them out

to provide security at various federal government properties. It also trains security officers

in the handling of weapons. This case concerns whether Constellis’s firearms and tactics

instructors in its training programs are properly considered “employees” for purposes of

the National Labor Relations Act (NLRA).

Macri and the other instructors taught small groups of students how to handle a

variety of weapons. Constellis 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.

Macri and his colleagues were, however, permitted some discretion in carrying out

their jobs. They could, for example, remove a student from a live firing situation if they

observed a safety violation. The instructors could also file “spot reports” about students

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who engaged in misconduct. On one occasion, Macri filed a spot report about a student

who smelled of alcohol during class. Constellis 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. Indeed, Macri was once disciplined for

requiring students to do burpees as punishment when they returned to class late following

a break.

Macri raised concerns about working conditions at Constellis with his supervisors

more than once. During a staff meeting at the start of the COVID-19 pandemic, Macri

questioned Constellis’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 Macri months earlier.

Several months later, Macri—together with other instructors—sent a letter to

Constellis management voicing their objection to a problem at the firing ranges that caused

bullets to ricochet back toward shooters. The letter stated that the ricochet problem posed

“a serious but correctable life hazard to both students and instructors,” warned that it could

lead to “injury or death,” and requested that Constellis fix this safety problem immediately.

J.A. 730. 1 In response to the instructors’ letter, Constellis temporarily closed the most

dangerous range and later claimed to have fixed the problem.

The ricochet problem persisted. During a meeting with his supervisors, Macri

confronted them about the company’s failure to correct the issue. He raised his voice and

1 Citations to J.A. refer to the Joint Appendix filed by the parties. 5 USCA4 Appeal: 23-1861 Doc: 46 Filed: 12/01/2025 Pg: 6 of 11

yelled at a supervisor. After this meeting, Constellis suspended Macri and later fired him,

allegedly for insubordination.

B. Procedural History

Macri filed a charge with the NLRB Regional Director in Maryland alleging that he

had been terminated unlawfully in retaliation for speaking out about unsafe working

conditions at Constellis. After investigating Macri’s claim and finding it meritorious, the

Regional Director filed a complaint against Constellis for violating NLRA Section 8(a)(1),

which forbids employers from interfering with, restraining, or coercing employees for

engaging in concerted activities for mutual aid or protection. 29 U.S.C. §§ 157, 158(a)(1).

Constellis contested the allegations. Although it conceded that Macri had repeatedly

complained about unsafe working conditions, Constellis maintained that Macri had been

fired because of alleged insubordination, not in retaliation for his concerted activity.

Constellis also argued that Macri was a “managerial employee” and thereby excepted from

the NLRA’s protections.

Following a hearing, an NLRB administrative law judge (ALJ) concluded that

Macri was not a managerial employee and was, therefore, entitled to the full protection of

the NLRA. The ALJ further found that Constellis suspended and terminated Macri, in large

part, because he had raised concerns about Constellis’s approach to personal protective

equipment at the start of the COVID-19 pandemic and the ongoing ricochet problem in the

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firing ranges. 2 Thus, the ALJ ruled that Constellis had committed unfair labor practices in

violation of the NLRA.

Constellis appealed the ALJ’s decision to the National Labor Relations Board (the

Board), which affirmed and adopted the decision with only minor modifications. Before us

is the NLRB General Counsel’s application for enforcement of the Board’s order and

Constellis’s cross-petition for review, challenging the Board’s finding that Macri was not

a managerial employee. 3

II. Analysis

This court treats the Board’s findings of fact as conclusive if they are “supported by

substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(f). The same

substantial evidence standard applies to our review of the Board’s resolution of mixed

questions of law and fact, including a determination of whether an employee is properly

considered a managerial employee for purposes of the NLRA. NLRB v. HQM of Bayside,

LLC, 518 F.3d 256, 260 (4th Cir. 2008). Substantial evidence “means—and means only—

2 To establish a violation of Section 8(a)(1), the NLRB General Counsel need only show that an employee’s protected activity “was a substantial or motivating factor for the employer’s action.” RGC (USA) Mineral Sands, Inc. v. NLRB, 281 F.3d 442, 448 (4th Cir. 2002); see also Wright Line, 251 N.L.R.B. 1083 (1980). Retaliation need not be the only motive for the employer’s actions. See RGC (USA) Mineral Sands, Inc., 281 F.3d at 448. 3 An order of the National Labor Relations Board does not have the force of law until it is enforced by a federal Circuit Court of Appeals. 29 U.S.C. § 160(e); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48 (1938) (explaining that “[n]o power to enforce an order is conferred upon the Board” and “[t]o secure enforcement, the [NLRB General Counsel] must apply to a Circuit Court of Appeals for [an order’s] affirmance”).

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‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Biestek v. Berryhill, 587 U.S. 97, 102–03 (2019) (quoting Consol. Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938)).

A. The Managerial Exception

The NLRA protects “any employee” unless the employee is specifically excepted.

29 U.S.C. § 152(3). The Supreme Court created one such exception in NLRB v. Bell

Aerospace Co. Division of Textron for “managerial employees” who “formulate and

effectuate management policies by expressing and making operative the decisions of their

employer.” 416 U.S. 267, 288 (1974) (quotation marks omitted). Noting that the NLRA

did not explicitly detail this exception, the Supreme Court nonetheless reasoned that

Congress regarded managerial employees as “so clearly outside the [NLRA] that no

specific exclusionary provision was thought necessary.” Id. at 283.

This is the first time our circuit has been called upon to construe the managerial

exception. We agree with our sister circuits that the managerial exception must be

construed narrowly given the NLRA’s otherwise broad definitional language. See Univ. S.

Cal. v. NLRB, 918 F.3d 126, 140 (D.C. Cir. 2019) (acknowledging the need “to avoid

interpreting the managerial exception so broadly that it chips away at the NLRA’s

protections”); David Wolcott Kendall Mem. Sch. v. NLRB, 866 F.2d 157, 160 (6th Cir.

1989) (“[T]he exception must be narrowly construed to avoid conflict with the broad

language of the [NLRA] which covers ‘any employee,’ including professional

employees.”); see also Holly Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996) (noting

“reviewing courts must take care to assure that exemptions from NLRA coverage are not

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so expansively interpreted as to deny protection to workers the [NLRA] was designed to

reach”); Entergy Gulf States, Inc. v. NLRB, 253 F.3d 203, 208 (5th Cir. 2001) (explaining

the supervisor exception to employee status under the NLRA “is not construed broadly” so

as not to cause employees to “lose rights which the [NLRA] seeks to protect”). In assessing

whether an employee is managerial, the proper focus is on the employee’s “actual job

responsibilities, authority, and relationship to management.” Bell Aerospace, 416 U.S. at

290 n.19.

“[E]mployees whose decisionmaking is limited to the routine discharge of

professional duties in projects to which they have been assigned” are not deemed

managerial. NLRB v. Yeshiva Univ., 444 U.S. 672, 690 (1980). Such employees’

responsibilities fall within “the scope of the duties routinely performed by [those] similarly

situated[.]” Id. Even employees with substantial expertise, responsibility for planning, or

authority to direct and evaluate other employees are not automatically considered

managerial. Id. at 690 n.30.

Put plainly, we must determine whether the employee’s responsibilities are so

aligned with management that the employee “represents management interests by taking

or recommending discretionary actions that effectively control or implement employer

policy.” Id. at 683.

B. Review of the Decision of the Board

The Board’s conclusion that Macri was not a managerial employee is supported by

substantial evidence. As a threshold matter, the Board articulated the correct legal standard

as established by the Supreme Court. The Board then properly applied that standard to find

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that Macri’s position as an instructor lacks sufficient indicia of managerial status to fall

under the exception: Constellis instructors are not permitted to formulate or effectuate

management policies; they have no ability to alter the curriculum they teach; they play no

role in selecting students for training; they are not allowed to independently discipline

students; and they cannot make the ultimate decision regarding whether a student is

permitted to remain in the training program. The authority to remove a student from class

temporarily because of a safety violation does not evidence the level of discretion

characteristic of managerial employees. Such authority is more akin to that of

non-managerial classroom teachers who can remove students from class to control the

safety conditions in their classrooms but cannot suspend or expel students without the

involvement of higher-level decisionmakers. The authority to remove a student temporarily

is particularly important in the context of weapons training, where students and instructors

face substantial dangers that require immediate intervention.

The actions taken by Macri in response to his concerns about workplace safety

demonstrate the importance of the NLRA’s protection of those engaging in concerted

activity. Macri and his coworkers lacked the ability or authority to fix the ricochet problem

at the firing ranges. Instead, they had to bring their safety concerns to the attention of those

at Constellis with the power to address the issues.

We can quickly dispense with Constellis’s remaining arguments. The Board did not

err by referring to and relying on its decision in Wolf Creek Nuclear Operating Corp., 349

N.L.R.B. 686, 693 (2006). That decision provides a useful analysis of managerial status in

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a similar setting. Nor is there support for Constellis’s assertion that the ALJ engaged in

results-oriented decision-making.

III. Conclusion

For these reasons, we grant the Board’s application for enforcement and deny

Constellis’s cross-petition for review.

GRANTING APPLICATION FOR ENFORCEMENT AND

DENYING CROSS-PETITION FOR REVIEW