Union

By enacting Government Code section 3504.5, subdivision (c), 1 we conclude the Legislature retroactively removed a county government’s legal authority to unilaterally deny unionized employees the same health benefit programs as it provides unrepresented employees.

During negotiations with a county physician’s union, Los Angeles County adhered to a firm policy enforcing a county ordinance providing only unrepresented employees could participate in two superior health benefit programs — Flex and Megaflex. When negotiations concluded without any agreement on this issue, the county unilaterally removed unionized physicians who were participating in the Flex and Megaflex programs and denied other unionized physicians admission to those programs. The Legislature then passed section 3504.5(c) which prohibits local authorities from providing different health benefits to unionized employees than nonunionized employees unless the union agrees. By its terms this prohibition also is retroactive to a date prior to the date on which Los Angeles County terminated the unionized physicians from participation in the Flex and Megaflex programs available to unrepresented employees.…

Concurring. — I write separately to state although I concur in the majority opinion the enactment of subdivision (c) as an amendment to Government Code section 3504.5 in 2002 is new legislation as contended by the Union of American Physicians and Dentists, Los Angeles County’s argument the enactment is merely expressive of existing law relegates the issue to a category that I refer to as a “close call.”

Be that as it may, I perceive a more fundamental problem with Government Code section 3504.5, subdivision (c). The problem lies with the question whether Government Code section 3504.5, subdivision (c) is constitutional in the first instance. The constitutional problem that I perceive was never raised in the trial court, nor briefed in this court, nor addressed by counsel at the time of oral argument. In short, the issue is not before us and has no part to play in the final disposition of this matter as reflected in our filed opinion.

Nevertheless, the perceived constitutional issue lies dormant just below the surface and must await a future appeal where it is properly raised by counsel who deem the issue worthy of judicial resolution. Whether the phoenix will rise from its own…

By enacting Government Code section 3504.5, subdivision (c), [1] we conclude the Legislature retroactively removed a county government's legal authority to unilaterally deny unionized employees the same health benefit programs as it provides unrepresented employees.

During negotiations with a county physician's union, Los Angeles County adhered to a firm policy enforcing a county ordinance providing only unrepresented employees could participate in two superior health benefit programs — Flex and Megaflex. When negotiations concluded without any agreement on this issue, the County unilaterally removed unionized physicians who were participating in the Flex and Megaflex programs and denied other unionized physicians admission to those programs. The Legislature then passed Section 3504.5, subdivision (c) which prohibits local authorities from providing different health benefits to unionized employees than non-unionized employees unless the union agrees. By its terms this prohibition also is retroactive to a date prior to the date on which Los Angeles County terminated the unionized physicians from participation in the Flex and Megaflex programs available to…