Postmates, Inc. (29-CA-204616)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE:

February 12, 2018

TO:

Kathy Drew King, Regional Director

Region 29

FROM:

Jayme Sophir, Associate General Counsel

Division of Advice

SUBJECT: Postmates, Inc.

29-CA-204616

596-0855

596-1683-1000

This case was submitted for advice as to: (1) whether the charge against

Postmates, Inc. (“Employer”) was properly served by email within the Section 10(b)

period, and (2) whether couriers working for the Employer are employees within the

meaning of Section 2(3) of the Act, rather than independent contractors excluded from

the Act’s coverage.

We conclude that the charge was timely filed but not properly served within the

Section 10(b) period. Therefore, this charge should be dismissed, absent withdrawal.1

FACTS

The Courier on whose behalf the instant charge was filed worked for the

Employer from late 2013 until February 17, 2017.2 On that day, he discovered he had

been terminated when he realized he could no longer log into the Employer’s app. On

August 16, one day before the end of the 10(b) period, the Courier’s attorney filed a

charge against the Employer with Region 2 via fax, alleging that the Courier was

terminated for engaging in protected concerted activities.3 On that same day, the

Courier’s attorney attempted to serve the charge on the Employer via hand delivery;

however, the Employer’s Brooklyn office was permanently closed. The Courier’s

counsel then emailed a copy of the charge to an Employer email address—

1 Because we find that the charge was not properly served within the Section 10(b)

period, we do not need to address whether couriers working for the Employer are

employees or independent contractors.

2 All remaining dates are in 2017 unless otherwise indicated.

3 Region 2 forwarded the charge to Region 29 after business hours on August 16. As a

result, the date recorded on the charge is August 17

we find that the charge was not properly served within the Section 10(b)

period, we do not need to address whether couriers working for the Employer are

employees or independent contractors.

2 All remaining dates are in 2017 unless otherwise indicated.

3 Region 2 forwarded the charge to Region 29 after business hours on August 16. As a

result, the date recorded on the charge is August 17.

Case 29-CA-204646

- 2 -

dispres@postmates.com, which she found in the Terms of Service provided on the

Employer’s website, https://about.postmates.com/legal/terms. Although the Board’s

Rules and Regulations provide that service may be made by email “with the

permission of the person receiving the charge,” the Courier’s attorney did not obtain

the Employer’s permission before serving the charge by email.

On August 18, Region 29 attempted to serve the Employer a copy of the charge

via U.S. Mail at the Employer’s Brooklyn address, but the charge was returned to

Region 29 as undeliverable on October 11. On September 11, the Employer’s counsel

filed a notice of appearance concerning the charge, but did not indicate how he

learned about the charge.

ACTION

We conclude that the charge was timely filed but improperly served, because

none of the three attempts at service complied with both Section 10(b) and the Board’s

Rules and Regulations regarding service. Therefore, the charge should be dismissed,

absent withdrawal.

Section 10(b) requires a charge to be both filed with the Board and served on the

charged party within six months of the alleged unfair labor practice.4 Failure to serve

a charge within the six-month limitation period results in dismissal of the charge as

time-barred.5 Section 10(b) itself does not specify the permissible means of service or

the point in time when a charge is deemed served, but these gaps are filled by the

Board’s regulations

the Board and served on the

charged party within six months of the alleged unfair labor practice.4 Failure to serve

a charge within the six-month limitation period results in dismissal of the charge as

time-barred.5 Section 10(b) itself does not specify the permissible means of service or

the point in time when a charge is deemed served, but these gaps are filled by the

Board’s regulations. Section 102.14(a) of the Board’s Rules and Regulations provides

that the charging party is responsible for “timely and proper service” of a copy of the

charge upon the charged party.6 Such “[s]ervice may be made personally, or by

registered mail, certified mail, regular mail, private delivery service, or facsimile,”

and, “[w]ith the permission of the person receiving the charge, service may be made

4 29 U.S.C. § 160(b) (“[N]o complaint shall issue based upon any unfair labor practice

occurring more than six months prior to the filing of the charge with the Board and

the service of a copy thereof upon the person against whom such charge is made[.]”).

5 See, e.g., Dun & Bradstreet Software Services, 317 NLRB 84, 85-86 (1995)

(dismissing a charge that was timely filed but not timely served under Section 10(b);

charge was mailed to charged party six months and one day after the alleged unfair

labor practice), aff’d sub nom. Kelley v. NLRB, 79 F.3d 1238 (1st Cir. 1996).

6 29 C.F.R. § 102.14(a).

un & Bradstreet Software Services, 317 NLRB 84, 85-86 (1995)

(dismissing a charge that was timely filed but not timely served under Section 10(b);

charge was mailed to charged party six months and one day after the alleged unfair

labor practice), aff’d sub nom. Kelley v. NLRB, 79 F.3d 1238 (1st Cir. 1996).

6 29 C.F.R. § 102.14(a).

Case 29-CA-204646

- 3 -

by email or by any other agreed-upon method.”7 The method of service directly

impacts the date that the Board will consider the charged party served. Section

102.14(c) states:

In the case of service of a charge by mail or private delivery service,

the date of service is the date of deposit with the post office or other

carrier. In the case of delivery by email, the date of service is the

date the email is sent. In the case of service by other methods,

including hand delivery or facsimile transmission, the date of service

is the date of receipt.8

In this case, we conclude that the charge was timely filed but was not properly

served during the Section 10(b) period. The Section 10(b) period did not begin to run

until February 17—the day that the Courier learned of his termination9—and the

charge was filed with the Region on August 16.10 Therefore, the filing of the charge

was timely. All three attempts at service of the charge, however, failed to satisfy the

Board’s requirements. The Courier’s attempted hand delivery of the charge to the

Employer’s former Brooklyn address was deficient because the Employer never

received a copy of the charge through that method.11 The Courier’s emailing of the

charge was invalid because the Board’s regulations, which were updated as recently

as 2017, explicitly require that charging parties receive permission prior to serving a

charge via email.12 Here, the Courier received no such permission. Thus, although

7 Id.

8 29 C.F.R. § 102.14(c)

use the Employer never

received a copy of the charge through that method.11 The Courier’s emailing of the

charge was invalid because the Board’s regulations, which were updated as recently

as 2017, explicitly require that charging parties receive permission prior to serving a

charge via email.12 Here, the Courier received no such permission. Thus, although

7 Id.

8 29 C.F.R. § 102.14(c).

9 See A & L Underground, 302 NLRB 467, 469 (1991) (noting the Board’s long-settled

rule that the Section 10(b) period commences only when a party has “clear and

unequivocal notice” of a violation of the Act).

10 Region 29 dated the charge as August 17 because it was forwarded by Region 2

after business hours on August 16. However, the charge was filed in Region 2 on

August 16. See Earthgrains Co., 351 NLRB 733, 733 n.2 (2007) (fact that charge was

filed with wrong Regional Office irrelevant, because “where a charge should be filed is

essentially a venue matter, and improper venue is not fatally defective”).

11 29 C.F.R. 102.14(c).

12 29 C.F.R. § 102.14(a); see 82 Fed. Reg. 11748, 11749 (Feb. 24, 2017) (discussing

modernization of regulations and noting that the rules retain the requirement that

Case 29-CA-204646

- 4 -

service of a charge by email ordinarily is considered to be on the date the email was

sent, which was within the 10(b) period, the “date of service” rule only applies where

service by email was appropriate and, absent consent, it was not. Lastly, Region 29’s

mailing failed to satisfy the Board’s requirements because the charge was mailed on

August 18—just outside the 10(b) period.13

Based on the foregoing, we conclude that the charge should be dismissed, absent

withdrawal, due to lack of proper service.

/s/

J.L.S.

ADV.29-CA-204616.Response.Postmates1.

“permission be obtained for service by email in case a party does not frequently check

email”)

tisfy the Board’s requirements because the charge was mailed on

August 18—just outside the 10(b) period.13

Based on the foregoing, we conclude that the charge should be dismissed, absent

withdrawal, due to lack of proper service.

/s/

J.L.S.

ADV.29-CA-204616.Response.Postmates1.

“permission be obtained for service by email in case a party does not frequently check

email”).

13 See Dun & Bradstreet Software Services, 317 NLRB at 85 (concluding that serving

a charge six months and one day after the alleged unfair labor practice warranted

dismissal).

(b) (6), (b) (7)