Arbitrator Rules USPTO Violated Federal Labor Law by Eliminating Non-Patents Employee Telework Without Bargaining

On Monday, an arbitrator issued an order finding that the U.S. Patent and Trademark Office (USPTO) violated federal labor law when it eliminated routine and remote telework for non-Patents bargaining unit employees represented by the Patent Office Professional Association (POPA) without first engaging in impact and implementation bargaining. Arbitrator Blanca E. Torres concluded that the USPTO’s actions violated 5 U.S.C. Section 7116(a)(1), (5), and (7), the parties’ Collective Bargaining Agreement (CBA), and multiple negotiated memoranda of understanding (MOUs) governing telework programs across several USPTO business units.

Telework has existed at USPTO since the 1990s, and by 2022 the parties had negotiated separate MOUs governing telework for several business units, including the Office of Chief Financial Officer (OCFO), the Office of General Counsel (OGC), the Patent Trial and Appeal Board (PTAB), the Office of Policy and International Affairs (OPIA), and the Office of Government Affairs (OGA). Those MOUs defined several categories of telework, including “Routine” telework, which allowed employees to work from an approved alternate worksite on a regular schedule of 1 to 4 days per week. The “Remote” telework under the Telework Enhancement Act Program (TEAP), a congressionally mandated program, allowed employees to work from an approved alternate worksite five days per week and, if they chose, to permanently designate their home as their official worksite in exchange for waiving travel reimbursement. The “Situational” telework was defined as episodic and ad-hoc, with no regular schedule and requiring supervisory approval each time. Of the approximately 156 non-Patents employees covered by the grievance, 40 were in TEAP, 63 were in a 50-mile remote status, and 53 were in routine telework.

The dispute is part of a broader conflict between POPA and the USPTO over telework and labor obligations. In April 2025, POPA filed both a grievance and an Unfair Labor Practice charge against the USPTO over a separate return-to-office notice targeting probationary patent examiners, alleging similar CBA violations.

On January 20, 2025, the President issued a Return to In-Person Work Memorandum directing agency heads to terminate remote work arrangements and require employees to return to in-person work on a full-time basis, stating the memorandum “shall be implemented consistent with applicable law.” On May 19, 2025, the USPTO notified POPA that telework eligibility for all non-Patents bargaining unit employees would be restricted to situational telework only. Two days later, employees received individual notices confirming the change. POPA filed a grievance on May 29, which the USPTO denied on June 20. POPA invoked arbitration on July 3, and a hearing was held on December 2 and 3.

The USPTO grounded its decision in the statutory management rights clause at 5 U.S.C. Section 7106(a), arguing that determining telework eligibility was within its authority to assign work, direct employees, and manage agency operations. The agency further contended that the Presidential Memorandum constituted a government-wide rule it was obligated to implement and that overriding exigencies justified the absence of pre-implementation bargaining. The USPTO also argued that POPA waived its right to bargain by failing to submit proposals after receiving notice.

The order found that the telework MOUs had become effective in 2022 and 2024, before the memorandum was issued. Since the memorandum stated it “shall be implemented consistent with applicable law,” and applicable law includes 5 U.S.C. Section 7116(a)(7), which prohibits enforcing rules that conflict with existing collective bargaining agreements, the arbitrator found the USPTO’s implementation violated that provision.

The USPTO’s May 19 notice stated that management would “immediately implement the return to office initiative” with any remaining bargaining completed post-implementation. Employees received their individual notices two days later. The arbitrator found the obligation to request bargaining is not triggered where a change is presented as already decided upon, and that “when an agency gives the impression that it is futile for the union to attempt negotiations over its proposals, the agency has failed to engage in good faith bargaining in violation of the Statute.” The arbitrator found that POPA was presented with a fait accompli, constituting a failure to bargain in good faith in violation of 5 U.S.C. Section 7116(a)(1) and (5).

Furthermore, the arbitrator found the relevant question was not whether the USPTO possessed management rights under Section 7106(a), but whether it exercised those rights consistently with its contractual and statutory obligations. The MOUs contemplated individualized, position-by-position supervisory assessments before any telework eligibility determination. The record contained no evidence of such assessments, instead, approximately 160 employees across multiple business units received substantially identical determinations simultaneously.

In regard to exigency, the order noted that the challenged implementation occurred several months after the Presidential Memorandum was issued, and no facts were presented establishing that emergency circumstances required immediate action.

The TEAP Operating Procedures, negotiated pursuant to 5 U.S.C. Section 5711(f) and incorporated into the relevant MOUs, provided that the agency would “not convert TEAP-eligible positions to ineligible before bargaining to the extent required by law.” The arbitrator found that eliminating TEAP participation through unilateral action, without engaging the joint labor-management Oversight Committee, violated the March 23, 2022, TEAP MOU and the TEAP provisions incorporated across the other MOUs.

The arbitrator sustained the grievance and ordered the USPTO to rescind the May 19, 2025, notice as applied to POPA-represented non-Patents bargaining unit employees, restoring telework, remote-work, and TEAP participants to their prior status. The order also required the USPTO to bargain in good faith for future changes to telework eligibility or TEAP administration and to post a notice acknowledging its violations.

The agency has 30 days to appeal to the Federal Labor Relations Authority.