Joseph M. Giardina
56 East Entry Road
Staten Island, New York 10304
November 19, 1999
This Memorandum is respectfully submitted in response to the submission made by the Investigations Officer dated November 12, 1999
.It has been nearly five years since the Investigations Officer initiated his efforts to remove the Appellants from their lifetime association with Mason Tenders Union Local 23 and LIUNA. Despite what he claims in his brief as to his motivation, the simple truth remains that he has gone to ultra-extreme measures to remove all members of my family from any association with the Union. His relentless efforts have been politically motivated, and the clever crafting of his charges and his repeated attempts to engage novel legal interpretations of the law are an abuse of his office and the union's treasury.
 
A simple review of the chronology of the Investigations Officer's actions shows a zealousness that is not consistent with his efforts concerning many other members of the Mason Tenders District Council, as well as many professional service providers and contractors, who were named in the civil RICO complaint filed by Allan Taffet, Assistant United States Attorney, dated September 8, 1994, that fell under the jurisdiction of the Consent Decree. Many of these same people have resurfaced in positions of authority within the framework of the new Local 79 and the reconfigured MTDC. Yet while the Investigations Officer has ignored making any attempt to investigate the misconduct of these individuals, he has seen fit to make five separate attempts to expel me from the Union.

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A total of twenty-four separate charges, plus the Investigations Officer's attempt to appeal the Opinion of the Monitor, dated January 7, 1997 to this very same Court, have been submitted. It must be noted that the Monitor has rejected the twenty-two charges, and that no charge regarding financial misconduct has been upheld.
 
It is at this point that the position of the Investigation Office is seriously flawed because the motivation of the Appellants or lack thereof, is crucial to determine the validity of the appeal. Quite simply the charges filed against the Giardinas are devoid of personal profit. They also attempt to hold the Appellants to a standard of conduct that is arbitrary and unreasonable, as well as discriminatory.
 
The two charges that the Monitor has chosen to sustain (Charges 8 and 9) are identical, except in the violations of duties they claimed. They state that Appellants, Joseph M. Giardina and Lawrence P. Giardina failed to investigate the presence of Organized Crime in Local 23, regarding their father, Louis M. Giardina and the former Organizer of Local 23, Joseph Delmonico, and that they breached their duty to the membership by failing to take "remedial action". The only allegation of the influences of Organized Crime in Local 23 was stated in the Civil RICO suit filed by the United States Attorney in September, 1994, wherein after a twenty year investigation by the Federal Government, Joseph Delmonico and Louis Giardina, both of whom were retired members at the date of the filing, were merely named as associates of an Organized Crime family, but neither was named as a RICO defendant in the Government's complaint. Also neither was charged with any wrongdoing relating to Local 23, the MTDC or LIUNA.

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  Local 23 never received a copy of the Governments complaint from the United States Attorney's office.
 
  The Investigations Officer has presented a series of court decisions regarding the duties of Union officials; excerpts from depositions of various individuals, including the Appellants, which are twisted and distorted out of context, or are factually flawed; obscure newspaper and magazine articles; and the testimony of FBI Special Agent Wendy Brouwer, who provided contradictory evidence over the course of her appearances before the Monitor.
 
  The only information that should be relevant to the position of the Investigations Officer and the Monitor are what, if any, was the conduct of Louis Giardina and Joseph Delmonico illegal in relationship to their association with Local 23 and LIUNA, and what did Joseph and Lawrence Giardina know, if anything, about that conduct. The Appellants have continually stated that there was no evidence of illegal activity or misconduct on the part of either Louis Giardina or Delmonico relating to Union activity. The Investigations Officer filed charges against Delmonico in June 1995, two years after his retirement and against Louis Giardina in March 1996, nine years after his retirement. However, both sets of charges merely claimed that the two Respondents were associated with certain known Organized Crime figures, but do not state any actual acts of misconduct, relating to Union activity, which could be obvious to anyone not directly involved. Clearly both Appellants are totally devoid of any acts or knowledge of misconduct on the part of Mt Delmonico, or of their father, in spite of his 1988 conviction.
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The Investigations Officer was successful in having both individuals expelled by decisions of the Monitor. However, to then state that the Appellants should have known of some alleged secret illegal associations, on the part of the Respondents with Organized Crime, based on those Monitor's decisions, without one alleged illegal act is ludicrous.
When the Investigations Officer claims that there was attempt by the Gambino crime family to takeover Local 23 through the appointment by Delmonico of four or five shop stewards in a six-year period is ridiculous. Also, contrary to the claim made by the Investigation Officer, Jerry Garafolo was not appointed as a shop steward at any time.
 
The overwhelming truth is that not one Local 23 shop steward, appointed by Mr. Delmonico, was ever accused of any wrongdoing or misconduct relating to union business. Just as the Investigations Officer and the Monitor have stated that they lack the resources, or do not have the jurisdiction to pursue a particular issue, union officials are also presented with similar limitations and can only react to issues that are known or presented to them. Clearly there are no charges filed by Investigations Officer during his term that indicate a need to act or what type of "remedial action" could or should have been taken by the Appellants. Also, at no time was a complaint ever brought against either Louis Giardina or Joseph Delmonico to the attention of either Appellant relating to union activity by a member of Local 23.
 
The expenditure of time and union money necessary to "take remedial action" against retired members, who were merely mentioned in a Government complaint but were not charged with any wrongdoing, would have been. both costly and foolish. Also,

 
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after the defeat of Delmonico's entire slate in the Local 23 election of 1993, any attempt to take unwarranted remedial against Delmonico could have been misinterpreted as a retaliatory effort in violating Delmonico's right to run for union office.
 
A closer look at the summary of events mentioned by the Investigations Officer In his Memorandum of Law in Opposition to the Appeal of the Appellants illustrates the misconception that governs the agenda of his office. He has continually substituted his opinion for facts regarding the fist-hand knowledge of the Appellants. For example, Joseph Gotti's arrest for rioting certainly has nothing to do with union activity, but the Appellants were never aware of the particular event, just as the Appellants never read the Bergan Record or Newsday magazine. Besides, Joseph Gotti was cleared according to the notation listed in the Investigations Officer's own Memorandum(p.16). Also, the appointment of Joseph Gotti and Giacomo Giordano as a shop stewards by Joseph Giardina; the appointment of Peter Gotti and Vincent Gotti as shop stewards by Delmonico; the Newsday article of April 9, 1993 and the May 1994 subpoena issued to Local 23 were all discussed as part of the first three set of charges filed against Joseph M. Giardina, and the Monitor has rejected all the charges and allegations relating to these events in his January 7, 1997 Opinion.
As to any "remedial action.' to be taken against relatives of John Gotti or any other known criminal simply for being related to him would be inappropriate, since each relative appeared to properly fulfill their respective duties to the union, and no complaints were ever filed by any other members of the union. Any attempt to violate these

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individuals could have exposed the local to lawsuits, since the officers and members of the union do not have the blanket protection afforded to the Investigations officer under the Consent Decree.
 
FBI Special Agent Brouwer's contact with. the Appellants was in regards to misconduct at the MTDC, not Local 23. The authority of the Federal Government and its law enforcement officials is far greater than any labor union. Also the September 8, 1994 civil RICO action and the November 1, 1994 United States motion for summary judgement against the MTDC was never delivered to Local 23 or the Appellants. What all of these events had in common is that there was no distinct act of misconduct. which fell within the jurisdiction of the Appellants or any union officials to react upon.
 
The Investigation Officer has never stated what could or should have done by the Appellants to uphold their duty to the union. When Special Agent Brouwer falsely testified that she had made some type of offer to the Appellants to allow the FBI to run. Local 23 and have the Appellants "front for the FBI", she was rebuked by the Monitor. It is clear that the Investigations Officer has deliberately chose to side-step the question of "remedial action". What "remedial action" has the Investigations Officer taken with regards to Michael Pagano, who was charged by the United States Attorney in the September 8,1994 civil suit, but today holds positions with two LIUNA-affiliated organizations, while his son is employed by Local 79's Apprenticeship Program. The lack of consistency and objectivity permeates the entire focus of the investigations Officer's term under the Consent Decree.

 

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