Fourth Circuit: The NLRA’s “Manager” Exception Is Narrower Than You Think

Fourth Circuit: The NLRA’s “Manager” Exception Is Narrower Than You Think

The Fourth Circuit joined the D.C. and Sixth Circuits in giving the NLRA’s judge-made “managerial exception” a deliberately narrow read — and the result is that more employees you may think of as “management” actually have full Section 7 rights to organize, complain, and engage in concerted activity.

In NLRB v. Constellis, LLC, the company fired a firearms instructor after he raised his voice at a supervisor about bullets ricocheting on a gun range. Constellis argued the instructor was a manager and therefore outside the NLRA’s protections. Not so fast, said the Fourth Circuit.

Under the standard, the court held (drawn from NLRB v. Bell Aerospace and NLRB v. Yeshiva University), an employee qualifies as an NLRA-exempt manager only if they “formulate and effectuate management policies by expressing and making operative the decisions of their employer.” Routine professional decisions in projects you’ve been assigned to don’t count.

The instructor at Constellis trained others, but he did not attend management meetings, could not change curriculum, did not pick trainees, could not discipline students, and could not decide whether students stayed in the program. That’s not management — that’s an employee with the right to raise safety concerns and not get fired for it.

Three real takeaways for employers:

1. Don’t confuse job title with managerial status. If you want a position to fall outside the NLRA, the employee actually has to set policy, hire / fire, run a department, or other recognized indicia of managerial duties..

2. The NLRA’s definition of “employee” is intentionally broad. The exceptions are construed narrowly across multiple circuit courts.

3. Even if the managerial exception does not fit, other exceptions (supervisor, confidential employee) may still apply.

And remember: when an employee raises a safety concern — even loudly — disciplining them for the “insubordination” wrapped around the safety complaint is risky business. Courts and the Board look at the underlying protected activity, not just the tone.

How do you decide whether a senior individual contributor is really “management” for NLRA purposes — title, duties, or actual authority?