Firearms instructor unlawfully fired after safety complaints

In a matter of first impression, the 4th U.S. Circuit Court of Appeals agreed with the National Labor Relations Board, or NLRB, that a firearms instructor was not a managerial employee and their employer committed unfair labor practices by firing him.

The instructor was fired after complaining about safety at their employer’s firing range. The employer claimed that the instructor was excepted from the National Labor Relations Act, or NLRA, as a managerial employee. The NLRB disagreed and ruled in the instructor’s favor.

Judge Nicole G. Berner upheld the NLRB’s determination that the employee’s position as instructor lacked sufficient indicia of managerial status to fall under the NLRA.

“The actions taken by [the instructor] in response to his concerns about workplace safety demonstrate the importance of the NLRA’s protection of those engaging in concerted activity,” Berner wrote.

Judges G. Steven Agee and Toby J. Heytens joined Berner to grant the NLRB’s application for enforcement and deny the employer’s cross-petition for review in National Labor Relations Board v. Constellis LLC (VLW 025-2-431).

Attorneys for the NLRB declined to comment on the matter, while attorneys for the employer did not respond to a request for comment.

Safety complaints

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 year, Macri and several of his instructor colleagues raised safety concerns to their supervisors, including that bullets were ricocheting back during shooting exercises, putting instructors and students at grave risk — several had already been struck by bullet fragments.

Constellis temporarily closed one dangerous range and claimed to have fixed the problem. But the ricochet problem persisted and Macri loudly confronted his supervisors about it in a meeting. After the meeting, Constellis suspended and later terminated Macri.

In his charge filed with the NLRB, Macri alleged that Constellis had unlawfully terminated him in retaliation for exercising his right to engage in protected concerted activity.

According to Constellis, Macri was fired for insubordination, rather than retaliation for his concerted activity. Constellis further argued that Macri was a managerial employee and therefore excepted from the NLRA’s protections.

The Board found that Macri was not a managerial employee and Constellis committed unfair labor practices in violation of the NLRA by terminating Macri largely due to his ongoing complaints. Constellis was ordered to reinstate Macri and pay him his lost wages.

When the NLRB sought to enforce its order, Constellis cross-petitioned for review.

Substantial evidence

To review this question of first impression — whether an employee was properly considered a managerial employee under the NLRA — the panel treated the Board’s findings of fact as conclusive if they were supported by substantial evidence of the record.

“Substantial evidence ‘means — and means only — “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,”’ Berner explained, citing the U.S. Supreme Court‘s opinion in Biestek v. Berryhill.

In NLRB v. Bell Aerospace Co. Division of Textron, the Supreme Court created an exemption from the NLRA for managerial employees who “formulate and effectuate management policies by expressing and making operative the decisions of their employer.”

“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,’” Berner pointed out.

Actual responsibilities

The panel agreed with sister circuits that the managerial exception must be construed narrowly given the NLRA’s otherwise broad definitional language.

“In assessing whether an employee is managerial, the proper focus is on the employee’s ‘actual job responsibilities, authority, and relationship to management,’” Berner said.

“[E]mployees whose decision making is limited to the routine discharge of professional duties in projects to which they have been assigned are not deemed managerial,” the judge said, looking to NLRB v. Yeshiva Univ.

“Such employees’ responsibilities fall within ‘the scope of the duties routinely performed by [those] similarly situated,’” she wrote. “Even employees with substantial expertise, responsibility for planning, or authority to direct and evaluate other employees are not automatically considered managerial.”

Rather, the panel needed to determine whether the employee’s responsibilities were so aligned with management that the employee represented management interests by taking or recommending discretionary actions that effectively controlled or implemented employer policy.

Lacking authority

The Board properly applied the correct legal standard to find that Macri’s position as an instructor lacks sufficient indicia of managerial status to fall under the exception, and its conclusion that Macri was not a managerial employee was supported by substantial evidence.

Constellis’s instructors were not permitted to formulate or effectuate management policies, had no ability to alter the curriculum, played no role in selecting students, were not allowed to independently discipline students and could not make the ultimate decision regarding whether a student was 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” Berner wrote. “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 judge opined.

Here, Macri’s response to concerns about workplace safety demonstrated 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,” the judge noted. “Instead, they had to bring their safety concerns to the attention of those at Constellis with the power to address the issues.”

Berner also held that the Board did not err by referring to and relying on the decision in Wolf Creek Nuclear Operating Corp., which provided a useful analysis of managerial status in a similar setting.

“Nor is there support for Constellis’s assertion that the administrative law judge engaged in results-oriented decision-making,” Berner concluded.