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....
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