As Public Art Multiplies in California, Local Governments Bind Artists and Unions in Creative Symbiosis with Project Labor Agreements

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Part 1: A Little Background on Recent Developments for Public Art in California

The Sacramento Bee reported today that a group called Americans for the Arts Public Art Network (PAN) has given special recognition in its 2012 Year in Review program to the red rabbit sculpture entitled “Leap” installed in the new Terminal B at Sacramento International Airport.

“Leap” (aka the Red Rabbit) – public art at Sacramento International Airport.

At its August 11, 2008 afternoon meeting, the Sacramento Metropolitan Arts Commission selected Denver artist Lawrence Argent to provide the red rabbit on an 11-0 vote. A staff report for the Sacramento County Board of Supervisors meeting on October 28, 2008 indicated that Argent was one of three selected artists to each get “a total budget of $400,000 – $800,000” for completion of design, fabrication, and installation of public art for Phase 1 of the Airport Art Plan. The Sacramento Bee and other publications report that the red rabbit contract ended up costing $800,000, but I have not found the contract or a specific final number in official documents on the web. (Interested readers can probably obtain it with a Public Records Act request to the commission.)

Ordinances in the City of Sacramento and the County of Sacramento require those two governments in routine circumstances to provide two percent (2%) of their Capital Improvement Project construction funding to the Sacramento Metropolitan Arts Commission for spending on public art. There are some minor variations between the city and the county laws (for example, the county sets minimum project cost thresholds for applying the requirement), but the laws are similar: see code text for both local governments here.

The county ordinance gives the Board of Supervisors authority to spend less than 2% of funds on specific projects, and according to this Sacramento Metropolitan Arts Commission memo, the supervisors did indeed approve “an amount less than the normal 2% called for by the County’s Ordinance for the airport art budget.” But it was still enough to pay for the red rabbit.

Obviously public art can invite trouble. Professional artists tend to make statements that challenge the standards and sensibilities of the establishment and ordinary citizens. For example, columnists Philip Matier and Andew Ross reported in the San Francisco Chronicle that the $196,000 “Berkeley’s Big People” public sculpture by artist Scott Donahue approved by the Berkeley Civic Arts Commission in 2003 and installed in Berkeley in the fall of 2008 includes small but frank depictions of what dogs do at the dog park. These statues are impossible to miss while driving through Berkeley on I-80, but studying the medallions in question (circled in yellow below) requires a close look.










In addition to the controversy often inherent in art, taxpayers are understandably concerned whether or not public funding should be spent on art at public facilities at a time when money is tight for routine services. The Sacramento Metropolitan Arts Commission claims that taxpayer funds are not paying for the $6 million in airport art, as if the money just popped up out of nowhere: “The total terminal construction budget, including the art, is funded through bonds, grants, fees from airlines, an existing surcharge on passenger tickets, concessions, parking and rental cars. This money cannot be used for any other public expense because of Federal law mandating that money earmarked for airports can only be used for airports. Funds did not come from taxpayer dollars.” Well, ordinary people are still paying for it.

With two potentially compelling arguments against public art, artists and other people who make a living from public art have established their own trade association. (Everyone is a special interest nowadays.) According to its web site, “PAN is the only professional network in the United States dedicated to the field of public art. As a program of Americans for the Arts, PAN strengthens efforts to advocate for policies and best practices that serve communities creating public art. More than 350 public art programs exist in the United States at the federal, state, and local level…” (I’m guessing a disproportionate percentage of these 350 programs are based in California.)

So when the new Sacramento airport terminal opened in the fall of 2011 and travelers saw the giant aluminum red rabbit hanging from the ceiling, reactions were mixed, as you can read among the hundreds of comments posted on various news articles and blogs about the sculpture. My kids were delighted by it, along with some other people, and a restaurant in midtown Sacramento even named itself the Red Rabbit Kitchen and Bar. But many people were uneasy, confused, or aghast about the sculpture and its price. The sculpture provoked intense critical community dialogue on the meaning and value of art, so maybe it was worth the $800,000.

Now, with all this free money floating around California for public art, it doesn’t require a genius to predict that unions have a scheme to use the government to grab some of it.

Part 2: How the Unions Get a Piece of the Public Art Pie

Neither the Sacramento County Board of Supervisors nor the construction manager required contractors to sign a Project Labor Agreement with unions for construction of Terminal B at Sacramento International Airport. But if these entities had negotiated a Project Labor Agreement with a public art provision, it would have been interesting to see how Mr. Argent would have reacted to a government mandate to sign a union agreement and abide by the applicable collective bargaining agreements to transport, assemble, and hang the red rabbit. Perhaps he used union contractors and workers, but maybe he didn’t. He had a choice, however.

As far as I can tell, terms and conditions of public art in government-mandated Project Labor Agreements in California first appeared in the 2007 union deal for the Richmond Civic Center project. It simply indicated in Section 2.8(h) that “All artisan work covered by the City of Richmond Public Art Program, dated April 13, 1999” was exempt from the union agreement.

But union officials or union attorneys eventually realized that artists need workers in the trades to help install the art. Making sure no artist could bring in his or her friends to help install the art, the Project Labor Agreement now in effect for the $4 billion Transbay Transit Center projects in San Francisco contains the following language:

Section 7.6  All hiring for Project Work related to public art not excluded pursuant to Section 4.9 (m) of this Agreement shall be subject to the following limitations:

(a)  The artist/contractor shall be allowed two (2) core employees. Thereafter, if the artist/contractor has additional core employees, the Union shall refer to such artist/contractor one (1) journeyperson employee from the hiring hall out-of-work list for the affected trade or craft and will then refer one (1) of such artist/contractor’s core employees as a journeyperson. This process shall be repeated, one and one, until the artist/contractor’s crew requirements are met or such artist/contractor’s core workforce is exhausted.

(b)  Core employees shall not be subject to the requirement that the employee’s name appear on the artist/contractor’s active payroll for at least five hundred (500) hours in the calendar year immediately prior to the award of the Contract.

(c)  The artist/contractor shall be entitled to approve or disapprove Union referred employees in their sole discretion based upon the referred employees’ demonstrated skills and qualifications.

But the unions kindly exclude “inspection of aesthetic and functional features of the Art Program” from union control in Section 4.9(k) of the Project Labor Agreement and exempt “all work related to public art, provided, however, to the extent installation work falls within the scope of a Schedule A agreement, it shall be subject to Section 7.6 of this Agreement.”

Unions apparently want their trial Project Labor Agreement policy in the City of Berkeley to explicitly cover aspects of public art installation (it does not do so now), as shown in this excerpt from a May 15, 2012 staff report to the Berkeley City Council:

Public Art

One area of uncertainty during the first year of implementation has been Public Art. Because the CWA applies to all subcontractors, Public Art projects are subject to its requirements. Staff researched Project Labor Agreements in other cities, and none contain provisions for Public Art, so there was no established model to consider regarding handling Public Art projects. Staff reviewed requirements with bidding artists, and while all the artists agreed with the CWA in concept, it was very difficult for them to comply since their work is very specialized. Having workers unknown to the artist assist with installation of the functional art could result in damage to the artwork. The artists do work with the contractors and architects before and during the art installation.

The Public Art component of the CWA also requires significant staff time to respond to artist queries, troubleshoot potential problems, assess which trade would be applicable to the artist’s work and to participate in artist presentations during the artist selection process. The Joint Administrative Committee agrees to review Public Art on a case-by -case basis to assist in determining the applicability of the CWA to each Public Art project.

It would be interesting to find out which trade union would have claimed jurisdiction over attaching the dog bronze medallions onto the Berkeley’s Big People sculpture (discussed above). Is that work claimed by the Laborers, the Sheet Metal Workers, or the Iron Workers? Someone needs to get a prevailing wage coverage determination from the California Department of Industrial Relations, so there aren’t needless delays when arbitrators designated under Project Labor Agreements that cover public art are unable to resolve future disputes on such matters.

Public art cannot be delayed by work stoppages and slowdowns!

One comment

  1. […] Note that the Chick-fil-A planned for Santa Rosa ”is also proposing to incorporate Public Art in Private Development and is currently working with the City parks department to find an artist.” This may become another interesting angle: who will be the artist, and will a subversive message be expressed through the public art? […]