Stung By 802 Leafleting, Ken James Files Suit For Damages

Area Standards Campaign Crescendos to the Tune of $3.5 Million

Volume CI, No. 4April, 2001

Personal humiliation. Ridicule and contempt from peers. Mental anguish and suffering. These are all charges one would expect to be leveled by a wounded celebrity charging that a major tabloid newspaper printed false statements about an extra-marital affair or some other scandalous situation. Instead, they are part of Ken James’ $3.5 million lawsuit against Local 802 President Bill Moriarity, Director of New Organizing Tim Dubnau, Senior Organizer Joe Eisman, honor member Julie Schwartz, and several other unnamed 802 members or employees.

Ken James is alleging that, as part of 802’s campaign to uphold area standards by educating the public about his failure to provide pension and health benefits to his musicians, the above-named individuals have injured his reputation and “his good name as a musician and businessman.” The alleged injuries were the result of some informational leafleting Eisman, Dubnau and several other union staff and members conducted outside his Great Neck office.

One flyer quoted Schwartz, an 802 honor member, stating that “Pension payments are an integral and vital part of musicians’ earned income. Anyone refusing to pay into a pension is behaving as nothing less than a pickpocket. I’m sure that Ken James will eventually come to see that his musicians need a pension too.”

Providing professional musicians with health insurance so they can see a doctor when they are sick, and a decent pension so they can retire with dignity, seems like the obvious thing for a conscientious employer to do. Moreover, when all employers are operating on a level playing field, it becomes impossible for one of them to gain an unfair advantage over his competitors by refusing to provide benefits. Allowing one employer to do business without paying benefits has a negative impact on all musicians, because it creates a race to the bottom in which one employer profits – usually at the musicians’ expense – by lowering the standards that professional musicians have established in the club date field.

James has told Local 802, in the strongest terms, that he will never provide pension and health. He claims that this is because his musicians have told him they do not want benefits. Even if that were true, it would not address the need to establish a level playing field. And 802 Director of New Organizing Tim Dubnau, who is personally named in the lawsuit, told Allegro that “the notion that Ken James is refusing to provide benefits simply because he is abiding by the wishes of his musicians is disingenuous and patently false. We have talked to dozens of musicians who work with Ken James who would like benefits,” he said.

“Furthermore, naming a 79-year-old honor member of Local 802 – someone who started playing professionally long before Mr. James wore his first pair of diapers – in a frivolous $3.5 million lawsuit simply because this member had the courage to stand up for fellow musicians’ rights by advocating for a decent pension is an act of desperation by a man who apparently will stoop to just about any level to avoid doing the right thing,” Dubnau said.

Art Weiss, a club date musician who has publicly supported 802’s efforts to level the playing field among employers and win pension and health benefits for musicians, spoke to Allegro about the lawsuit and the fears musicians must overcome during a campaign to win benefits. “This lawsuit goes a long way toward explaining why Mr. James’ musicians would be hesitant to tell him they want benefits,” Weiss said. “If Mr. James isn’t ashamed of suing a 79-year-old honor member personally, as part of a $3.5 million lawsuit, for stating that employers should pay pension, I can imagine how he treats his musicians on and off the bandstand. I’m sure that people are afraid to go public with their views because, apart from dealing with a lawsuit like this, there is always the risk of straining relations on the bandstand, or even losing work.”

Far from derailing Local 802’s efforts to win pension and health benefits for Ken James’ musicians, President Bill Moriarity said the lawsuit’s only effect will be to intensify the campaign. “We have a major problem when a successful agency like Ken James refuses to live up to the area standards musicians have fought so hard to achieve,” he told Allegro. “We will surely respond to Mr. James in court – but our main focus remains educating clients, venues, community and religious leaders, government agencies, and the public at large about Mr. James’ failure to do the right thing and provide benefits for his hard-working, professional musicians.”

802 attorney Len Leibowitz told Allegro that his law firm will represent 802 and any party named in the lawsuit. “We are doing the right thing, both ethically and professionally. We will certainly represent any 802 member or employee who has the courage to stand up and advocate for musicians’ rights. I am confident that we are conducting this successful public relations effort well within the rule of law.”

As Allegro went to press, Leibowitz was preparing a counter suit for Local 802, charging that Ken James libeled the union when he sent a letter to unionized club date employers stating that 802 was engaged in illegal activities.

If you would like to help in the campaign to win pension and health benefits for musicians in the club date field, please call the New Organizing Department at (212) 245-4802, ext. 191 or 143. All calls are strictly confidential.