NLRB Advice Memoranda, SpaceX, National Labor Relations Board, (Mar 13, 2023)

The Region submitted this case for advice on whether the Charging Party engaged in protected concerted activity. [1] Given the Region's other determinations, the lone allegation to which Charging Party's claimed protected concerted activity could be relevant, is one alleging the Employer interrogated Charging Party about that alleged protected concerted activity. Without determining whether the Charging Party was engaged in protected concerted activity, we find that the Employer did not unlawfully interrogate the Charging Party and therefore this allegation should be dismissed.

The Employer designs, manufactures and launches rockets, satellites, and spacecraft, including operating the Starlink satellite system that provides internet access in normally inaccessible areas. The Charging Party was ​     ​ for the Employer at its Redmond, CA facility. Several months after beginning ​     ​ employment, the Charging Party became involved with ImpactX, the Employer's voluntary community outreach program. ​     ​ floated the idea of doing more outreach to ​     ​ communities, which the ​     ​, the employee in charge of ImpactX at the Redmond facility, encouraged ​     ​ to develop further. The Charging Party did a series of presentations regarding ​     ​ proposal to reach out to local ​     ​ groups, including to the ​     ​ who assisted the ​     ​ in coordinating the ImpactX program in Redmond. The ​     ​ suggested that the Charging Party also make a presentation to ​     ​ The Charging Party did a presentation for the ​     ​ in January of 2022, and then a final presentation on ​     ​, 2022. The ​     ​ told the Charging Party that ​     ​ would receive a final determination shortly as to whether ​     ​ proposed project could proceed.

On March 10, the ​     ​ sent the Charging Party an email explaining that the Employer would not ​     ​ be moving forward with ​     ​ proposal. The email stated:

Considering that this is a new outreach demographic for us, we ran the idea by theStarlink team for additional feedback. They expressed some concerns with reaching out to ​     ​, and were able to educate us on why this would not be the best approach. For example, they have found that most ​     ​ want to be left alone, they generally don't take kindly to new technologies/outsiders blindly approaching them, and they are likely to interpret this outreach as talking down to them/assuming they don't have internet if they do.

The Charging Party felt that this email was racist in tone and reached out to the ​     ​ to discuss it further. The ​     ​ informed the Charging Party that it was an accurate summary of the reasons that the Starlink team gave for rejecting the project at the meeting discussing the proposal. The (b) (6), Charging Party said that the email was racist and included offensive stereotypes and that ​     ​ was going to complain to Human Resources.

The Charging Party did eventually discuss ​     ​ concerns with the email with Human Resources and requested sensitivity training. Separately, the ​     ​ went to Human Resources to complain about the way that the Charging Party approached ​     ​ complaint, the ​     ​ reached out to the Charging Party and asked ​     ​ what had occurred during ​     ​ conversation with the ​     ​t. At the end of the meeting, the ​     ​ told the Charging Party that their conversation was confidential and that ​     ​ was not to speak about it with anyone other than Human Resources. [2]

To determine whether the ​     ​ unlawfully interrogated the Charging Party when ​     ​ asked about the Charging Party's conversation with the ​     ​, the Board looks at whether under all the circumstances, the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act. Rossmore House, 269 NLRB 1176, 1178 (1984), enforced, 760 F.2d 1006 (9^th Cir. 1989). Here, the ​     ​ questioned the Charging Party based on the complaint made by the ​     ​. The Employer had a legitimate business interest in investigating the allegation of ​     ​ employee misconduct. Fresenius USA Mfg. Inc., 362 NLRB 1065, 1065 (2015). The ​     ​ reasonably tailored the questioning to the Charging Party's conversation with the ​     ​ and did not attempt to probe any other possible protected concerted activity. See PAE Applied Techs., LLC, 367 NLRB No. 105, slip op. at 4 (2019); Bridgestone Firestone S.C., 350 NLRB 526, 528-29 (2007). While the Employer did unlawfully instruct the Charging Party not to discuss the conversation with the ​     ​ with anyone outside of Human Resources during the meeting, this single violation of Section 8(a)(1) does not rise to the level of restraining or coercing the Charging Party and rendering the Employer's questioning unlawful. See Fresenius USA Mfg., 362 NLRB at 1066.

Therefore, we need not reach the issue of whether the Charging Party engaged in protected concerted activity when discussing the ​     ​ email with the ​     ​, given our conclusion that the ​     ​ questioning of the Charging Party does not reach the level of unlawful interrogation. The Region should dismiss the allegation of unlawful interrogation, absent withdrawal.

This email closes this case in Advice. Please feel free to contact us with any questions.

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