Vsea v. State

Termont Superior Court
Filed 11/29/25
Washington nit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 25-CV-04981
65 State Street

Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Vermont State Employees' Association v. State of Vermont et al

ENTRY REGARDING MOTION
Title: Motion for Temporary Restraining Order and/or Preliminary Injunction
with Memorandum of Law (Motion: 2)
Filer: Alfred Gordon O'Connell
Filed Date: November 12, 2025

The motion is DENIED.

Today this Court has been tasked with addressing a petition for extraordinary

relief sought by the Vermont State Employees Union (VSEA) against the executive

branch of the State of Vermont concerning a recently promulgated policy change

requiring State employees to return to their in-person workstations no less than 3

days per work week beginning December 1, 2025 (the "Return-to-Work Policy").!

The VSEA opposes this shift as it is currently formulated and has filed a petition

with the Vermont Labor Relations Board under the Unfair Labor Provisions of 3

1
VSEA Verified Complaint at Ex. B.
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V.S.A. § 965.2 In addition to that Petition, the VSEA has also filed the present

complaint and motion for a preliminary injunction, which the Court has considered

pursuant to Rule 65. V.R.C.P. 65. Based on the reasons stated below, the Court

finds that it lacks express statutory authority to review the petition for a preliminary

injunction. To the extent that the Court has equitable jurisdiction to review such a

complaint, the VSEA has not presented sufficient evidence of irreparable harm at

this time. For these reasons, Petitioner’s motion for a Preliminary Injunction is

Denied.

Background Facts3

On September 12, 2025, the office of Governor Phil Scott formally notified the

VSEA that it would be enacting a policy change effective December 1, 2025, which

would require all state employees in the executive branch to return to in-person

work at least three days per work week. Whether this change in policy represents a

logical return to pre-covid working conditions, or a violation of 21 V.S.A. § 309’s

flexible working arrangements statute that requires bargaining, is disputed by the

parties. On November 10, 2025, after negotiations with the executive branch, the

VSEA filed a grievance with the Vermont Labor Relations Board (VLRB) who has

2 Vermont state employees are expressly excluded from the Vermont State Labor Relations Act found at

21 V.S.A. §¶ 1501, et sec. See 21 V.S.A. § 1502(7) (excluding state employment). Instead, State
employment is governed by the Vermont State Employees Labor Relations Act found at 3 V.S.A. §§ 901,
et sec. See Bd. Of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Bd., 162 Vt. 571, 574
(1994) (distinguishing between private, state, and municipal labor employment contracts).
3 This information comes from the verified complaint, the declaration and testimony of Deputy Secretary

of the Agency of Administration Sean Brown, as well as the exhibits submitted by the parties.
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primary jurisdiction of unfair labor practices under 3 V.S.A. § 965. Two days later,

the VSEA filed the present complaint with this Court seeking preliminary injunctive

relief. The VSEA has subsequently also sought a preliminary ruling from the VLRB

and sought the Board to take preliminary action. The VLRB has elected not to

participate in the present action or take preliminary action, but it has adopted an

expedited hearing schedule that is set to begin in early December.

The parties estimate that approximate 8,500 Vermont State employees are

affected by the Return-to-Work Policy. Out of those 8,500, approximately 5,500 are

already in compliance with the Policy and will not experience any change. Out of

the remaining 3,000 employees, 425 employees have filed requests with the State

for an exemption to the policy, which the State has represented it will grant for

compelling reasons on a case-by-case basis.4 The State reports that 25 of these

requests have been approved and granted. The remaining 400 requests remain

under advisement. To date, none have been rejected. The State has further

represented that the Return-to-Work Policy will not be enforced against anyone who

has a pending request. In some cases—particularly situations where an employee

may have to relocate to comply with the Policy—the State has envisioned granting

employees up to a 7-month exemption from the Policy. While the State has required

any request for an exemption to be put in writing, it has also indicated that it would

4 These exemptions range from limited, temporary exceptions to more permanent accommodations and

appear from the testimony to be dependent on the individual employee’s situation and needs.
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be flexible in its review process with a focus on the substantive over any technical

requirements.

Deputy Secretary Brown credibly testified that the State’s standards will

necessarily be individualized based on the circumstances of the employee’s

situation and nature of his or her request.5 The two main areas of hardships

discussed by both parties involve individuals who presently live a substantial

distance from their workstations and those individuals with child-care needs or

similar obligations. From the anecdotal representations, there appears to be the

potential for varying degrees of hardship. For example, the VSEA, in its argument,

referenced an employee living in Brattleboro, who is a new mother and is obligated

to report to a Waterbury workstation. The hardship in such a case would not simply

be the distance between the employee’s workplace and home but also the on-going

child-care and breast-feeding needs of the employee’s child.6

The VSEA does not contend that the State’s exemption process is unduly

onerous. The VSEA did elicit some testimony indicating that the exemption FAQs on

the State’s website was less than exhaustive or robust in its clarity, but the VSEA

5 Nothing in Deputy Secretary Brown’s testimony or the available evidence indicates that the State would

be implementing either the Return-to-Work Policy in derogation of the State’s obligations under the
Americans with Disabilities Act or State Fair Employment Standards, and in the absence of evidence to
the contrary, the Court understands that the provisions shall continue and accommodations offered under
this statutes would be applied and given consistent with the statutory standards, regardless of any
Return-to-Work Policy. See 42 U.S.C. §§ 12101–12213; 21 V.S.A. §§ 495–496a.
6 In his testimony, Deputy Secretary Brown stated that such an individual would almost certainly be

eligible for an exemption if one was requested.
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did not point to any unduly restrictive terms and cited no harsh interpretations. The

heart of the VSEA’s objections lie not necessarily with the execution of the

exemption process, but rather in the very existence of such a process that requires

employees to affirmatively apply for exemptions and provide compelling reasons.

This objection, however, is rooted in the merits of the VSEA’s ultimate objection to

the State’s policy, which revolves around the question of whether the State has

unilateral authority to re-instate the Return-to-Work Policy, or whether it constitutes

a change that mandates bargaining or runs afoul of 21 V.S.A. § 309.

Apart from numerical and anecdotal examples, the VSEA was not able to

produce either a specific number of employees that will suffer harm from this Policy

or testimony or evidence that would elevate specific nature of such harm for each

individual beyond the anecdotal and generalized.

Standard of Review: Preliminary Injunction7

As a Motion for Preliminary Injunction, Plaintiff seeks an “extraordinary

remedy,” which is “never awarded as of right.” Taylor v. Town of Cabot, 2017 VT 92,

¶ 19 (quoting Winter v. Nat. Res. Def. Council, Inc., 55 U.S. 7, 24 (2008)). There are

four factors to determining whether a Plaintiff is entitled to a preliminary injunction,

and Plaintiff bears the burden of establishing all four of the relevant factors under

Vermont law: “(1) the threat of irreparable harm to the movant; (2) the potential

7 While the VSEA’s motion

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harm to the other parties; (3) the likelihood of success on the merits; and (4) the

public interest.” Taylor, 2017 VT 92, at ¶ 19 (citing In re J.G., 160 Vt. 250, 255 n.2

(1993)); see also V.R.C.P. 65.

Does the Plaintiff Have a Statutory Right to Seek a Preliminary Injunction?

The first legal question raised by Plaintiff VSEA’s motion is whether it has a

statutory right to seek a preliminary injunction. VSEA cites to 3 V.S.A. § 1002(b) in

its motion as giving it authority to seek a preliminary injunction.

The “overall aim” of statutory interpretation “is to give effect to the intent of

the legislature . . .” State v. International Collection Service, Inc., 156 Vt. 540, 542

(1991). This begins by looking at the plain language of the statute. Id. In reviewing

a statute, the Court must look at the statute as a whole and will construe the

language of a statute “with others in pari materia as parts of one system.” Bud

Crossman Plumbing & Heating v. Comm'r of Taxes, 142 Vt. 179, 185 (1982)

(emphasis in the original).

Looking to the plain language of Section 1002, the intent of the statute is

limited to the enforcement of orders issued by the Vermont Labor Relations Board.

In subsection (a), the statute states that “Orders of the Board or an arbitrator issued

under this chapter may be enforced by any party or by the Board by filing a petition

with the Superior Court in Washington County . . .” 3 V.S.A. § 1002(a). The key

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word that begin the subsection is “Orders” issued by the Vermont Labor Relations

Board. Only after the Board has issued an Order can a party, or the Board itself, file

a “petition” with the Superior Court. Under this plain language, the statute calls for

the Board to act first, and to issue an Order before the parties may come to the

Superior Court and file a petition.

This language is picked up in subsection (b), the provision cited by the VSEA.

It states that “Upon filing of a petition by a party or the Board, the Court may grant

such temporary relief, including a restraining order, as it deems proper pending a

formal hearing.” 3 V.S.A. § 1002(b). Again, the key predicate is the filing of

petition, which in turn requires an Order from the Board.

As the Vermont Supreme Court has noted, Section 1002:

[P]rovide[s] that the enforcement of any orders made by the Labor
Relations Board shall be by petition for appropriate equitable relief
before the Washington County (now Superior) Court. That court is
restricted to determining whether or not the records of the Board and
the law relating thereto support the order. From the action of that court
an appeal, on questions of law, would lie to this Court.

Vermont State Employees’ Ass’n, Inc. v. State, 134 Vt. 195, 197 (1976); see also Stat

v. Davidson, Dckt. No. 483-8-13 Wncv, 2015WL5176755, at *2 (Apr. 15, 2015)

(Teachout, J.) (characterizing Section 1002 as a provision for the “enforcement of

VLRB orders”).

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This limitation is consistent with the language in 3 V.S.A. § 965, which

addresses unfair labor practices on which the VSEA’s entire action rests. Under

Section 965, the Vermont Labor Relations Board is given exclusive, initial jurisdiction

over the review and determination of unfair labor practices.8 All due process and

hearing rights are laid out in this section and give both employer and employee

rights to be heard by the Board in a quasi-judicial capacity. Id. (laying out the

pleading, hearing, and evidentiary procedures as well as the standards for rendering

a decision). The Vermont Supreme Court has ruled that this section gives the Board

authority “to issue cease and desist orders” and “and to take such affirmative action

as will carry out the labor relations policies of the state. To effectuate its statutory

purpose, the Board must stand by its own powers to remedy unlawful practices.”

VSEA (Health Care) v. State, 161 Vt. 600, 601 (1993) (mem.). Nowhere in Section

965 or the accompanying provisions is there a role for the Superior Court to act prior

to the VRLB taking action.

This conclusion that neither Section 1002, nor any other provision of the

SERLA, gives an individual party statutory authority to seek a preliminary injunction

when an Unfair Labor Practice complaint is filed, does raise a question of whether

the VLRB itself could either make a preliminary ruling or seek a preliminary

injunction to preserve its authority to review, make determinations, and render

8 Both the VSEA and the State agree that the VLRB has primary jurisdiction to hear a complaint

concerning an alleged unfair labor practice. See VSEA Reply at 4.
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orders. While that issue is not directly before the Court, it is necessary to consider

in light of both the State’s arguments as well as the Court’s consideration of its

equitable power. The Court does find some authority for the proposition within the

statutory framework and caselaw structure for the VLRB’s authority to seek such

relief. The Vermont Supreme Court has long interpreted not only the SELRA to be

read in pari materia with its own provisions, but that the SELRA should be read as

one part of a larger system of labor relations that govern both the private sector and

municipalities. Bd. Of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations

Bd., 162 Vt. 571, 575–76 (1994) (applying provisions found in different sections of

the SELRA, the SLRA, and the MERA to create a uniform right to appeal).

Thus, while the express provisions of 21 V.S.A. § 1623(g) have not been

incorporated into the SELRA, the Court finds no reasonable basis to understand why

this specific authority, which would allow the Board to seek temporary restraining

orders needed to avoid hardships or preserve the status quo, would not be available

to the Board. Bd. of Trustees of Kellogg-Hubbard Library, Inc., 162 Vt. at 576–77

(reading the right of a direct appeal to the Vermont Supreme Court found in SELRA

into the ULP process under the SLRA). There is nothing either in SELRA or the

circumstances of a SELRA-based unfair labor practice grievance to conclude that

the Board’s authority to preserve the status quo to preserve its process would be

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lesser than what it would have in a similar circumstance brought against a private

employer.

The State in its brief outlines both the historical and policy reasons behind

the allocation of power to the VLRB to seek preliminary injunctions. The Courts

finds those passages compelling, but for the purpose of the present motion, the

Court also finds that giving the VLRB the exclusive power to bring a preliminary

injunction would cure the issue of meeting the likelihood of success prong in the

preliminary injunction standard. As noted at the November 26th hearing, the heart of

the VSEA’s contention revolves around the fairness or lack of fairness within the

State’s Policy and its December 1st deadline. The Court has concerns because it is

not the ultimate decision-maker and any determination on this issue is likely to

impact the final decision-making process before the VLRB. These are issues that

the VLRB must address, and their absence from the present action means that any

adjudication, even on a temporary basis, invades their purview and forces the Court

to analyze and opine, even on a limited basis, on the decision that the General

Assembly has given the VLRB exclusive authority to make. If the VLRB were to

bring such a motion, then it would represent a preliminary statement from the

ultimate decision-maker in this case, which would represent a substantial

assurance to this Court that the likelihood of success prong had been satisfied to a

substantial degree.

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Even if the Court were to fully adopt the reasoning from Bd. of Trustees of

Kellogg-Hubbard Library, Inc decision, however, it would not alter the present

situation. As noted at the November 26, 2025 hearing, the VLRB has elected neither

to take independent action to preserve the status quo, nor to join the present

litigation as an interested party. In this respect, the one party that could arguably

claim the ability to seek preliminary injunctive relief in this matter as a statutory

right, has elected not to take such action. The Court finds this fact to have some

significance as both an expression by the decision-making board and by its absence

as a party with a substantial interest in the outcome.

Based on the foregoing, the Court finds that any exploration of injunctive

relief in this matter is outside any statutory authority and framework, and it is

necessarily limited to the Court’s equitable injunctive powers.

What Equitable Power the Court have to Insert Its Authority into a Pending
Administrative Proceeding

As a preliminary matter, the question of equitable powers rests, in part, on

whether there is a full and adequate remedy at law available. Poulin v. Town of

Danville, 128 Vt. 161, 165–66 (1969). “Equity will afford relief unless there is a plain,

adequate and complete remedy at law.” Id. In this case, the prior analysis

demonstrates that the legislature has created a specific framework for the review

and adjudication of unfair labor practices under 3 V.S.A. § 965 and for its

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enforcement under 3 V.S.A. § 1002. The Court finds that these provisions are

adequate and complete as a remedy at law. When coupled with the implied in pari

materia power of the VLRB to either take preliminary action or action with this

Court, there is very little daylight between the VLRB process and a complete remedy

in regard to the normal progression of an unfair labor practice grievance.

The present situation suggests that there is a small and limited area where

the Court’s equity jurisdiction may be necessary. In this respect, both parties have

cited to federal case law for the idea that there remains a very narrow equitable

channel through which some injunctive relief may arise. This is known as the Boys

Market/Buffalo Forge exception and the reverse of this exemption. Niagara Hooker

Employees Union v. Occidental Chemical Corp., 935 F.2d 1370, 1374–75 (2d Cir.

1991). The Boys Market/Buffalo Forge exemption allows that courts may grant

injunctions to enjoin certain union activity during arbitration to preserve the status

quo. Id. at 1375–76. The reverse of this exemption applies to certain employer

activity. Id. This exemption is first and foremost, premised on the court’s equitable

power to prevent certain administrative proceedings from being overtaken and

rendered meaningless by the unilateral actions of a party. Id. at 1377.9

9 The State has sought to limit the application of Niagra and similar cases in this matter on the fact that it
involved arbitration and not unfair labor practices. The Court finds that the reasoning of Niagara and
similar cases is not so constrained as the heart of this analysis is anchored in a broader equitable power
of the court to preserve the process permitted by statute and to prevent a party from frustrating or doing
what would effectively be an end-run to frustrate the statutory framework and remedies. Id. at 1379
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As described by the Second Circuit, the invocation of this injunctive power

has two essential elements that the moving party must establish: (1) the action

sought to be enjoined must have the effect of frustrating the arbitration process,

and (2) the effect of the action must render the arbitration process a “hollow

formality.” Id. at 1377–78. The second element can only be met if an award in the

moving party’s favor could not undo the harm occasioned by the lack of an

injunction. Id. at 1378.

Applying these principals to the present action, the VSEA contends that if a

preliminary injunction is not granted, then a certain number of its members will face

hardship or the loss of employment before the VLRB can review and adjudicate the

grievance. Nothing in these allegations would necessarily render the VLRB’s

process necessarily futile. This is, in part, because of the uncertainty of the facts in

this case. As based on Deputy Secretary Brown’s declaration and testimony, the

State has a vigorous exemption process. As of today, it is unclear how many State

employees face any type of hardship from the Return-to-Work Policy. That number

will almost certainly decrease as the exemption process continues. Even if

temporary, the exemptions will allow the employee to avoid the brunt of any policy

changes during the time that the VLRB will be working on its expedited process. If

such exemptions forced an employee to incur some expense, there is no evidence

(focusing on whether an action frustrates the process or renders it futile and not a “wider focus” on the
nature of the harm).
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that a successful decision for the VSEA and subsequent bargaining could not

address this issue.

The number and nature of the affected population is, in short, a moving

target. The VSEA originally stated that its informal surveys had indicated that as

many as 300 members would be affected. The State has already received 425

exemption requests. It is not clear if these numbers contain the full universe of

employees facing hardship under the Policy, or if only represents some fractional

percentage comprised of those who have spoken up.

This number becomes even more complicated for injunctive purposes when it

is broken down into specific cases. Under the State’s policy, individuals facing a

geographic hardship that would require relocation may receive up to 7 months of

deferment. While that does not go to the ultimate question of whether these

employees should be required to move to keep their employment, it effectively

nullifies the emergency nature of the present action as the action should not come

until after VLRB makes its expedited decision. For those that have other issues,

such as child-care, it is not clear from the record whether these hardships would be

remedied by an exemption or remediated by an order in the VSEA’s favor from the

VLRB.

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What this Court is left with is an uncertain portion of state workers who may

be substantially affected by the Return-to-Work Policy and who may or may not face

adverse employment consequences between now and the time that the VLRB is

able to decide the central issue. This limited impact does not meet the standard of

Niagara or the Boys Market/Buffalo Forge standard of rendering the VLRB process

futile.

More broadly, the record does not show the necessary irreparable harm that

this Court must find to grant a preliminary injunction. Taylor v. Town of Cabot, 2017

VT 92, ¶ 40 (“A preliminary injunction will usually be denied ‘if it appears that the

applicant has an adequate alternate remedy in the form of money damages or other

relief.’”) (quoting C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURe § 2948.1

(3d ed. 2017)). On the present record, the Court would be speculating as to the

scope, nature, and even severity of the harm if it went forward to grant relief in this

case. This is not to say that there are not State employees who will be affected by

this policy. Nor is it to minimize the hardships or concerns of those individuals, but

it is to recognize that there are several processes in play, presently, that render a

decision at this time from this Court inappropriate.

First, the executive branch has implemented an individualized exception

policy that appears poised to address a significant number of affected individuals

and the most serious hardships. If and when such relief is granted, then any

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emergency issues are concurrently abated. Second, the VLRB has committed to

taking expedited action. Any ruling from this Court should take pains not to

interfere or affect that agency’s authority to control the matter and craft an

appropriate order and remedy. The VLRB’s its initial steps indicate that it has taken

jurisdiction and initial steps to address the VSEA’s concerns. Third, it appears that

the State has committed to allowing employees the opportunity to work through the

exemption process and committed to taking no action prior to the review and

determination of these exemptions. This will further separate out the pool of

potentially impacted employees into those who have elected to utilize the exemption

process and those who have not. Only after these initial steps would the parties

have a clear record on which to make their arguments. Until then, the Court cannot

find any irreparable harm given the State’s offering of an exemption and the lack of

clarity about the number of affected employees and the true nature of the harm

against which they seek relief.

For these reasons, the Court finds that any application of its limited equitable

jurisdiction at this point in time would be an abuse of discretion as the Court lacks

the necessary foundation and record for rendering the extraordinary injunctive relief

sought by the VSEA within the limited scope of relief before the Court.

ORDER

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Based on the forgoing, the VSEA’s motion for injunctive relief is Denied.

Given that the VSEA only sought a preliminary injunction in this matter and not

ultimate or final relief on the underlying grievance, the Court further Dismisses the

complaint given that the sole issue has been resolved with the present denial.

Electronically signed on 11/29/2025 1:58 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel P. Richardson
Superior Court Judge

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