On February 9, 2026, the National Labor Relations Board (“NLRB” or the “Board”) dismissed its long-running unfair labor practice complaint against SpaceX that alleged SpaceX unlawfully terminated certain engineers. The Board’s dismissal letter states that the NLRB lacks jurisdiction over SpaceX, citing a recent opinion issued by the National Mediation Board (“NMB”).

Background

In 2024, the NLRB issued an administrative complaint on the unfair labor practice charges against SpaceX, alleging that eight employees were unlawfully discharged after circulating a company-wide open letter criticizing SpaceX’s CEO. As reported here and here, the Board’s complaint was the basis for SpaceX’s subsequent constitutional challenge, which asserted the NLRB’s structure is unconstitutional because it limits the removal of Administrative Law Judges and Board Members and permits Board Members to exercise executive, legislative, and judicial power in the same administrative proceeding.

The Jurisdictional Argument and NMB Opinion

In addition to its constitutional arguments, SpaceX also argued that the NLRB lacked jurisdiction over it, claiming instead that SpaceX is more like the railroad and airline companies covered by the Railway Labor Act (“RLA”). RLA-covered employers fall under the jurisdiction of the NMB rather than the NLRB. The General Counsel of the NLRB under the prior administration rejected the argument; however, following her termination, the Acting General Counsel sought input from the NMB in April 2025.

On January 14, 2026, the NMB issued an opinion stating that SpaceX should be covered by the RLA because “space transport includes air travel.” Notably, the fired SpaceX engineers argued that SpaceX does not belong under the NMB because Congress never gave the agency jurisdiction over commercial space transportation, and because unlike airlines serving the general public, SpaceX offers rides only to “hand-picked customers.” These arguments were rejected by the NMB. Citing to that NMB determination, the NLRB regional director reasoned that it lacks jurisdiction over SpaceX and dismissed the pending unfair labor practice complaint.

Implications

The dismissal likely signals the end of SpaceX’s constitutional challenge to the NLRB in the Fifth Circuit; although, the NLRB still faces constitutional challenges in numerous other courts, including in the Third Circuit and Ninth Circuit. In August 2025, the Fifth Circuit affirmed preliminary injunctions halting the NLRB’s proceedings against SpaceX, holding that the NLRB’s removal protections for ALJs and Board Members were likely unconstitutional. However, the resolution of the challenge in the Fifth Circuit may temporarily resolve the circuit split concerning injunctions under the Norris-LaGuardia Act (as reported here). In the absence of a circuit split in these cases, the remaining constitutional challenges likely will not reach the Supreme Court until decided on the merits and appealed through the lower courts.

The NLRB’s decision to relinquish jurisdiction over SpaceX also raises questions about how non-traditional transportation companies may be categorized by federal agencies as technological and transportation industries continue to evolve.

As always, we will continue to update you on these NLRB developments.

Further contributions to this article by Andrew Landesman, Law Clerk.