Firing Range Instructor Was Not a Manager Under the NLRA

Takeaway: While the National Labor Relations Act protects workers  coordinating with each other for their mutual aid and protection, it does not cover all workers. The act excludes managerial employees.

The 4th U.S. Circuit Court of Appeals ruled that a firearms and tactics instructor for a security guard training company was not a manager and therefore was covered by the National Labor Relations Act.

The charging party worked as a firearms and tactics instructor for Constellis Inc., a company that trained security officers in the proper handling of weapons. He and the other instructors taught small groups of students how to handle a variety of weapons. Constellis mandated that instructors adhere to a curriculum developed by management.

Constellis 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 curriculum or drill specified on the range cards without supervisory approval.

Constellis’s policy prohibited instructors from otherwise disciplining or removing students from the training program. Such actions could be taken only at the direction of the supervisor. However, the charging party and his colleagues were permitted some discretion 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 who engaged in misconduct. 

At the outset of the COVID-19 pandemic, the charging party voiced concerns about Constellis’s alleged lack of workplace precautions. Later that same year, he and several of his instructor colleagues raised significant safety concerns, including one involving firing ranges, to their supervisors. The instructors complained that bullets ricocheted back during shooting exercises, putting instructors and students at grave risk. Indeed, several shooters had already been struck by bullet fragments. After the charging party complained, Constellis suspended and later terminated him.

The charging party filed an unfair labor practice charge with the National Labor Relations Board (NLRB), alleging that Constellis had unlawfully terminated him in retaliation for exercising his right to engage in protected concerted activity. 

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The board agreed and ordered Constellis to reinstate the charging party and pay him his lost wages. The board’s general counsel filed an application with the 4th Circuit for enforcement of its order, and Constellis cross-petitioned for review.

The 4th Circuit noted that this case was the first time it had been called upon to interpret the managerial exception to the NLRA. It agreed with its sister circuits that the managerial exception should be construed narrowly given the NLRA’s otherwise broad definition language. It reasoned that, in assessing whether an employee is managerial, the proper focus is on the employee’s actual job responsibilities, authority, and relationship to management.

Employees whose decision-making is limited to the routine discharge of professional duties and projects to which they have been assigned are not managerial. Even employees with substantial expertise, responsibility for planning, or authority to direct and evaluate other employees are not automatically considered managerial. To be a manager, the employee must represent management interest by taking and recommending discretionary actions that effectively control or implement employer policy.

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The 4th Circuit noted that the NLRB found that the charging party’s position as an instructor lacked sufficient indicia of managerial status to fall within the exception. Instructors were not permitted to formulate or effectuate management policies, had no ability to alter the curriculum taught, played no role in selecting students for training, were not allowed to independently discipline students, and could not make the ultimate decision whether a student is permitted to remain in the training program.

It was clear that by complaining, the charging party and his co-workers lacked the ability or authority to fix a ricochet problem at the firing ranges. Therefore, the 4th Circuit found that the charging party was clearly not a manager, and the board did not err by finding that the managerial exemption did not apply to him. The 4th Circuit thus granted the board’s application for enforcement and denied Constellis’s cross-petition for review.

National Labor Relations Board v. Constellis LLC, d/b/a Academi Training Center LLC, 4th Cir., No. 23-1861 (Dec. 1, 2025).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.