By JIM BARON

PROVIDENCE — Council 94 and the Carcieri administration have once again, at the behest of Superior  Court Judge Patricia Hurst, kicked the can down the road for two more weeks, delaying a decision on whether Hurst will block the governor’s executive order to force changes in the unions’ health plan.

Council 94, a group of state employee union locals, asked Hurst last week to issue a restraining order to prevent Gov. Donald Carcieri from implementing his executive order — which imposes conditions of a settlement that Council 94 workers rejected overwhelmingly, 2,870 to 196 — while Council 94 pursues an unfair labor practice against the state before the state Labor Relations Board.
Hurst asked the state to hold off on putting the executive order into effect until a conference that was held on Wednesday. At that conference, which was held in Hurst’s chambers, the judge accepted the state’s memorandum opposing the restraining order and, giving Council 94 until Monday to submit a reply brief, told the parties she would make a decision within two weeks.
The state again agreed to defer the order until the judge’s decision.
The unions argue that months of “discussions” leading up to the memorandum of settlement that several unions ratified but that Council 94 and some others rejected, were not “negotiations” for the purpose of state labor law and maintain that the state must enter formal negotiations now that the informal settlement has been rejected.
In a memo given to the judge on Wednesday, the state rejects that stand.
Noting that the memorandum of settlement was signed by Council 94 executive director Dennis Grilli and Vice President Jonathan Braddock, the state’s brief asserts that, “Council 94’s agents, by signing the memorandum of settlement, ratified the negotiation process and waived the right to negotiate individually with the state.
To claim that negotiations were not conducted, despite the signed memorandum of settlement by the parties and numerous meetings between the parties, is to deny the obvious. In reaching the memorandum of settlement, the governor bargained in good faith and fulfilled all of the statutory requirements.”
Besides that, Carcieri administration contends it has a trump card.
“The inherent constitutional authority of the governor, in light of a fiscal crisis, trumps any conflicting statute, labor law principle or any other principle which would require him to maintain the status quo,” the brief states.
Carcieri hopes to save $10 million from the givebacks he is demanding from Council 94, and says that is a crucial part of his constitutional obligation to balance the state budget. Carcieri spokeswoman Amy Kempe said Wednesday that the administration will study the budget implications of delaying his executive order, which was set to take effect on Friday by withholding the increased health care co-share form employee paychecks, but that it is too early to tell at this point how the money lost to the delay would be made up.
Kempe said efforts at conciliation and arbitration with Council 94 will go forward on a separate track and is not affected by the court action.
Noting that the state complied with language in the contract for terminating the agreement, the memo contends that, “The state no longer has any contractual obligations to Council 94 because the contract was officially terminated by the Carcieri administration. Council 94 has bargained away any residual rights to maintain the status quo.
That disputes the assertion made in Council 94’s memorandum in support of its request for a restraining order, dated Aug. 4, that says, “It is entirely irrelevant whether the contact has expired or has been terminated because the parties are still required to pursue statutory impasse procedures whenever they are unable to agree on a contract.
They contend that “unilateral changes by an employer in existing wages, hours and working conditions of employees represented by a certified bargaining agent is violative of federal labor law (and) state labor board precedent (and) statutory impasse procedures.”
The governor’s brief comes right out of the blocks in opposing the issuance of a restraining order, saying in its first paragraph that a key element in granting injunctive relief is a finding that irreparable harm will be done if the restraining order does not issue and that “the imposition of an increased contribution for health insurance and healthcare plan design changes...does not represent an irreparable harm.
“The monetary value of deductions may be easily calculated and reimbursed,” it explains.
It goes on to say that one-fifth of Council 94-represented workers would pay less for their health care under terms of the executive order than they do now, and that Council 94 employees in Rhode Island co-pay a lower percentage of their health care costs than similarly situated employees for the federal government or the Commonwealth of Massachusetts.
“The rise in rates may be painful to Council 94 members,” the governor’s memo concedes, “but it is pain being felt by the general state employee populace – and the citizens of Rhode Island as a whole – and simply representative of the difficult economic times Rhode Islanders are facing.
“Should this court prevent the governor from taking the necessary steps to deal with the fiscal crisis facing the state,” the brief warns, “the resulting harm will be felt by more than just the plaintiffs, it will be felt by every citizen in the state.
“The governor has acted reasonably in the exercise of his authority during a time of crisis,” it concludes, “...Respectfully, the court should not interfere with the reasonable cost-cutting measures implemented by the governor.”