Opposition Brief — George v. Bethlehem Steel Corp.

}4, Mopreme Ceurt, U.S.

FIED

No. 94-649 1 NOV 14 1994

PIE OF tre tee eK

hectesnteadthrlein®

In The

Supreme Court of the United States

October Term, 1994

+

KENNETH K. GEORGE,

Petitioner,

BETHLEHEM STEEL CORPORATION,

Respondent.

+

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

S

BRIEF OF RESPONDENT BETHLEHEM STEEL

CORPORATION IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

Dona S. KAHN*

RicHARD G. TUTTLE

ANDERSON Kitt OLICK

& Osuinsky, P.C.

Fourteenth Floor

1600 Market Street

Philadelphia, Pennsylvania 19103

(215) 568-4202

Counsel for Respondent

Bethlehem Steel Corporation

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF QUESTIONS

3 PRESENTED FOR REVIEW

1. Whether the granting of a challenge for cause

during civil jury selection causes cognizable prejudice to

the party opposing the challenge, where the jury ulti-

mately impanelled is fair and impartial.

2. Whether the district court abused its discretion in

excluding evidence of employment decisions made by

persons not involved in the decision to terminate the

plaintiff’s employment.

li

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRE-

oy ee | erry Pret i

See Be CE a bis a6 den ccdacsenanaeinsee ii

TA Re Far ee 6 cc ccacthwineenescenesas iv

STATEMENT OF CORPORATE AFFILIATIONS ..... 1

Ee rr yr reir 1

COUNTERSTATEMENT OF THE CASE ............ 1

Fi. FE TO 6 sek nn td weed ieusnaweens 1

B. Counterstatement of Facts ................... 2

Pr re myn aR R Sys ree ae 6

I. Any asserted error during jury selection was

either harmless or waived by George; and in all

events, the procedures followed by the district

court during jury selection were proper........ 6

A. Procedural Dachqqeuedl. «ooo scscesiecccnss 6

B. The granting of a challenge for cause, even if

erroneous, causes no prejudice to the party

opposing the challenge, so long as the result-

Seat FUE 30 TIO 6 os os ace cantnceseenes 7

C. The assignment of error at issue has been

CN 5 0.5.60 8 cess neon cabo ckaenneasdass 8

D. The procedure by which the jury was

selected was procedurally and substantively

Sot Gi OU Ds in oss cas ccntansvasesnens 9

E. The district court’s rulings during jury selec-

tion were correct on the merits............ 11

iii

TABLE OF CONTENTS - Continued

Page

Il. The district court’s order in limine involved a

routine application of settled law to the facts of

this case. Review by this Court of that decision is

ES Oe Ee re ee 11

ER oS rd aan tds censure neces veeeceae 13

iv

TABLE OF AUTHORITIES

Page

CASES

Brown v. New Jersey, 175 U.S. 172 (1899).............. 7

Consolidated Gas & Equipment Co. v. Carver, 257

Pie BE 8 Ce Ss Si isn ecaeaesapineteneess 11

E.E.0.C. v. United States Steel, 649 F. Supp. 964

te RTE r Pree reer ree Pere 12

Earley v. Champion International Corp., 907 F.2d

Pgh Ee | errr rye rr Te ere rire 12

Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d

509 (3d Cir. 1992), cert. denied, 114 S.Ct. 88

CON 5 Fis cea dE RAVE Rede REE RED RRR ARK 12

Fortino v. Quasar Co., 950 F.2d 389 (7th Cir. 1991).... 12

Helvering v. Wood, 309 U.S. 344 (1940)................ 9

Howard v. Kentucky, 200 U.S. 164 (1906) .............. 7

Northern P. R. Co. v. Herbert, 116 U.S. 642 (1886) ..... 7

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...... 12

Ridenour v. Lawson Company, 791 F.2d 52 (6th Cir.

EERE ey PERE Py Eee re hE Seer ee te Pee 12

Sahadi v. Reynolds Chemical, 636 F.2d 1116 (6th Cir.

| LORE EES Fee oie Pere gee raph Oe ree 12

Shettel v. United States, 113 F.2d 34 (D.C. Cir. 1940) ..... 7

Singleton v. Wulff, 428 U.S. 106 (1976)................ 9

Stirone v. U.S., 341 F.2d. 253 (3d Cir.), cert. denied,

ee FR Cr rere Pret ewer rrr ery 9

United States v. Calhoun, 542 F.2d 1094 (9th Cir.

Riana earns ans bh bs kane a Ae eae abo 8

ne

Vv

TABLE OF AUTHORITIES - Continued

Page

United States v. Joseph, 892 F.2d 118 (D.C. Cir. Pee 7

United States v. Mathews, 803 F.2d 325 (7th Cir.

1986), rev’d on other grounds, 485 U.S. 58 (1988) ..... 8

United States v. Puff, 211 F.2d 171 (2d Cir.), cert.

denied, 347 eh UI so kad core as ys xd uiw oes 8

United States v. Zambito, 315 F.2d 266 (4th Cir.

1963), cert. denied, 373 U.S. 924 (1963).............. 8

Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th

Cir. 1981), cert. denied, 455 U.S. 1000 (1982) ..... 8, 11

Williams v. Williams Electronics, Inc., 856 F.2d 920

3 2: Rae ae ieee 12

STATUTES, CourRT RULES AND REGULATIONS

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Be is ES 555 Ao oo a Food oe bin SLAW ee ew koe beeen 1

Be I SS 55% 550605 6.44.64 hank AS KS Uae doo wae 1

I iors aso wa db kd bao bk eRe ko hiwnnn nee 1

ee Se I os babs fh seca cds one Wise seden 10

RTE NT ia 10

I ao nos ok c ache bok kownkeenen il: 9

en res NS bes ee ee 9

vi

TABLE OF AUTHORITIES - Continued |

Page

MISCELLANEOUS AUTHORITIES

5A Moore’s Federal Practice, { 47.07([2], n.5 (2d ed.

OO aoe Ns subg i b.6u 4405.6 000045 K4088 11

Clerk’s Office Procedure Handbook for the Eastern

District of Pennsylvania, § XXI(J)(2)............+505. 6

Kerr, “Varieties in Jury Selection Methods,” 44

F.R.D. 245 (10th Cir. Jud. Conf. 1967) .............. 9

STATEMENT OF CORPORATE AFFILIATIONS

Pursuant to Supreme Court Rule 29.1, respondent

represents (i) that Bethlehem Steel Corporation is not a

subsidiary of any corporation, and (ii) that Bethlehem

Steel Corporation owns interests in various subsidiaries

as set forth in Appendix 1 hereto.

+

JURISDICTION

The United States District Court for the Eastern Dis-

trict of Pennsylvania had subject matter jurisdiction over

this action under 28 U.S.C. § 1331. Jurisdiction of the

Court of Appeals was based upon 28 U.S.C. § 1291. This

Court's jurisdiction is conferred by 28 U.S.C. § 1254(1).

+

COUNTERSTATEMENT OF THE CASE

A. Procedural History

The complaint in this action was filed by petitioner

Kenneth K. George (“George”) on October 15, 1991, in the

United States District Court for the Eastern District of

Pennsylvania. George asserted a claim against respondent

Bethlehem Steel Corporation (“Bethlehem Steel”) under

Section 4 of the Age Discrimination in Employment Act

of 1967, 29 U.S.C. § 623, as amended (“ADEA”). The

district court conducted a bifurcated trial in which the

issue of the timeliness of George’s claim was tried first,

followed by a trial on the merits. The jury found during

the first phase that George’s complaint was timely, but

found in the second phase that Bethlehem Steel did not

discriminate against George on the basis of his age. The

district court awarded judgment in favor of Bethlehem

Steel on the merits in accordance with the jury’s verdict.

By judgment order dated July 19, 1994, the Court of

Appeals for the Third Circuit affirmed the district court’s

judgment in favor of Bethlehem Steel. George’s Petition

for Certiorari (hereafter, “George Pet.”) followed.

B. Counterstatement of Facts.

Petitioner Kenneth George was employed by

Bethlehem Steel in various accounting positions from

1957 until his termination in 1989. On January 27, 1988,

Bethlehem Steel notified George and others working in

the Home Office of Bethlehem Steel’s Marine Construc-

tion Division that their positions were to be eliminated.

That decision was made by Robert Funk, President of the

company’s Steel-Related Group. (Court of Appeals Joint

Appendix (hereafter, “Ct. App. Jt. App.”), Vol. 5, 336-38;

Vol. 6, 357-58). George was offered the position of Con-

troller, Freight Car Division, which he declined on Febru-

ary 1, 1988. (Ct. App. Jt. App., Vol. 7, 482). During the

next twenty-one months, George worked on various tem-

porary assignments within Bethlehem Steel, while he

searched unsuccessfully for another permanent position

within the company. George’s employment terminated in

October, 1989, at the conclusion of his final temporary

assignment.

Bethlehem Steel disagrees with various statements of

fact made by George in his Petition for Certiorari. George

in — eesti !

suggests that “Bethlehem Steel intentionally failed to pro-

vide [George] with alternative employment which

Bethlehem Steel provided younger employees.” (George

Pet. at 13). In fact, all five professional employees affected

by the elimination of the Home Office of the Marine

Construction Division were in their fifties at the time of

the restructuring, and only one of those persons, an engi-

neer, accepted permanent alternative employment within

the company.

George asserts that “Bethlehem Steel [followed a]

defacto policy of promoting and hiring younger

employees to the exclusion of older workers.” (George

Pet. at 13). No such policy existed, and the jury con-

cluded that Bethlehem Steel had not discriminated

against George on the basis of his age.

George avers that he “explicitly asked all persons in

decision-making positions to inform him of job openings

so he could be considered.” (George Pet. at 15). The

deposition testimony on which George relies for that

statement (Ct. App. Jt. App., Vol. 2, 126) was not a part of

the trial record, and, in all events, does not support the

statement for which it is cited. Moreover, George’s asser-

tion is implausible, given the hundreds of persons

entrusted with employment decisions within Bethlehem

Steel Corporation.

George describes a “Personnel Committee” (George

Pet. at 8-9, 12-13) that allegedly adopted a promotion

policy which discriminated against older workers. The

committee that George describes, however, merely made

recommendations, not decisions, on intra-company

assignments of accountants. Moreover, the committee dis-

banded in 1986, some two years before the decision was

made to eliminate the Home Office of the Marine Con-

struction Division.

George repeatedly, and unsuccessfully, sought to

show at trial that Lonnie Arnett participated in the deci-

sion to terminate George’s employment. He avers in this

Court (i) that “Lonnie Arnett . . . was employer’s corpo-

rate controller who was supervising all of employer’s

accounting positions” (George Pet. at 7-8); (ii) that

“Arnett was a key person in the decision to terminate

[George] as set forth in employer’s termination letter”

(George Pet. at 9); and (iii) that “Arnett dictated the

employer’s retention and promotion policy which dis-

criminated against older employees” (George Pet. at 10).

In fact, Mr. Arnett did not supervise all, or even most, of

Bethlehem Steel’s accounting positions; Arnett had no

role in the decision to terminate George other than to

advise Mr. Funk, when asked, that there were no open

positions in Mr. Arnett’s unit (Trial Exhibit P-24); and Mr.

Arnett did not dictate Bethlehem Steel’s retention and

promotion policies.

George argues that “the trial court erroneously

decided as a matter of law that Lonnie Arnett was not

involved in Bethlehem Steel’s decision to terminate

[George] ....” (George Pet. at 10). That decision by the

district court, however, was carefully explained by the

district court (Ct. App. Jt. App., Vol. 5, 313-14), and

amply supported by record evidence.

Bethlehem Steel also takes issue with parts of

George’s recitation of the procedural history of the case.

George asserts that he “complained on the record about

this in absentia process [by which the jury was selected by

counsel outside the presence of the trial judge,] which

had the effect of giving the employer two extra peremp-

tory challenges.” (George Pet. at 6). Most civil juries in

the Eastern District of Pennsylvania are selected by coun-

sel without the trial judge or a stenographer present, and

George made no objection to that procedure in this case.

George did, indeed, complain about the district court’s

decision to grant two challenges for cause made by

Bethlehem Steel, but at no point did George object to the

absence of the trial judge during jury selection.

George also suggests that he made a “request for a

transcript at time of voir dire questions to preserve the

jurors [sic] answers for appellate review.” (George Pet. at

6). George, in fact, demanded that two prospective jurors

who were challenged for cause be asked to re-state their

answers to voir dire questions on the record, but at no

time did George request that voir dire as a whole be

recorded.

George avers that he “appealed to the United States

Court of Appeals for the Third Circuit . . . arguing that

the in absentia jury selection process was unconstitu-

tional.” (George Pet. at 11). George’s briefs on appeal

described the district court’s rulings during jury selection

as having been made “in absentia,” but George did not

argue to the court of appeals that the process was for that

reason unconstitutional or otherwise defective. Rather,

George argued only that the trial court’s rulings on

Bethlehem Steel’s challenges for cause were erroneous on

the merits, and that a reconstructed transcript of the

questions and answers at issue should have been made.

+

ARGUMENT

I. Any asserted error during jury selection was either

harmless or waived by George; and in all events, the

procedures followed by the district court during

jury selection were proper.

A. Procedural background.

George’s Petition for Certiorari (George Pet. 18-20)

argues that the district court denied George due process

of law by its decisions during jury selection. Voir dire was

conducted by counsel in Philadelphia in the presence of a

deputy clerk of court and without a stenographer pres-

ent, pursuant to the normal practice in the district for

civil cases. See Clerk’s Office Procedure Handbook for the

Eastern District of Pennsylvania, § XXI(J)(2). At the time of

voir dire, the district court judge was in Reading, Pennsyl-

vania, awaiting the selection of jurors from the district’s

central juror pool in Philadelphia. Bethlehem Steel chal-

lenged two prospective jurors for cause, one whose claim

against his employer for handicap discrimination was

then pending in the same court (Ct. App. Jt. App., Vol. 8,

572-73), and another who had had a serious dispute with

a former employer about which she consulted an attor-

ney. (Ct. App. Jt. App., Vol. 8, 569-70). The district judge

was advised of the basis of the challenges by the deputy

clerk by telephone, and sustained both. George then

asked to have each of the two excluded jurors repeat their

answers for the record. That request was denied by the

court, also by telephone. The next day, before the jury

was sworn, George renewed his objections to the granting

of challenges for cause, and again objected to the court’s

refusal to order transcription of the excluded jurors’

responses. The court denied the renewed objections, and

explained the reasons for its rulings on the record. (Ct.

App. Jt. App., Vol. 8, 570-71, 573-74).

B. The granting of a challenge for cause, even if

erroneous, causes no prejudice to the party

opposing the challenge, so long as the resulting

jury is impartial.

This Court long ago established that the decision to

grant a challenge for cause, even if erroneous, causes no

prejudice to the party favoring retention of the juror, so long

as the jurors who ultimately hear the case are fair and

impartial. “The right to challenge is the right to reject, not to

select, a juror. If, from those who remain, an impartial jury is

obtained, the constitutional right of the accused is main-

tained.” Howard v. Kentucky, 200 U.S. 164, 174 (1906), quoting,

Brown v. New Jersey, 175 U.S. 172, 175 (1899). The rule applies

equally in civil cases. Northern P. R. Co. v. Herbert, 116 US.

642, 646 (1886).

The requirements of due process are satisfied by the

impanelling of an impartial jury even if the decision to

grant a challenge for cause was error:

[While it is true, as appellant argues, that the

Constitution guarantees to an accused the right

to a speedy trial by an impartial jury, it does not

follow that the rejection of qualified persons for

insufficient cause would deprive appellant of

that right; or that any useful or legitimate pur-

pose would be served by remanding the case for

a new trial before another impartial jury.

Shettel v. United States, 113 F.2d 34, 36 (D.C. Cir. 1940)

(footnotes omitted); see also, United States v. Joseph, 892

F.2d 118, 123-24 (D.C. Cir. 1989). Various other circuits

have acknowledged the same principle. United States v.

Mathews, 803 F.2d 325, 328-29 (7th Cir. 1986), rev’d on other

grounds, 485 U.S. 58 (1988); Vanskike v. ACF Industries, Inc.,

665 F.2d 188, 207 (8th Cir. 1981), cert. denied, 455 U.S. 1000

(1982); United States v. Calhoun, 542 F.2d 1094, 1103 (9th

Cir. 1976); United States v. Puff, 211 F.2d 171, 184-85 (2d

Cir.), cert. denied, 347 U.S. 963 (1954). Accord, United States

v. Zambito, 315 F.2d 266, 269 (4th Cir. 1963), cert. denied,

373 U.S. 924 (1963). Bethlehem Steel has found no cases

holding to the contrary.

George’s claim of a due process violation is thus

without merit. The case was tried before an impartial

jury, and the district court’s rulings on Bethlehem Steel’s

challenges for cause, even if erroneous, caused no preju-

dice to George.

C. The assignment of error at issue has been

waived.

In all events, George has waived the claim of error he

makes in this Court. Until his Petition for Certiorari,

Ge. ‘ge never argued that it is error, constitutional or

otherwise, for a district judge to rule upon a challenge for

cause without observing the veniremen.

In the district court, George opposed Bethlehem’s

challenges for cause on the grounds (i) that the prospec-

tive jurors at issue had affirmed their willingness to

decide the case on the basis of the evidence and instruc-

tions at trial, and (ii) that the court had failed to order the

creation of a transcript of the two prospective jurors’

responses. (Ct. App. Jt. App., Vol. 8, 569-74).

George’s briefs in the court of appeals noted that the

district court made its rulings in absentia, but his briefs

neither suggested nor argued that the district court's

unwillingness to examine prospective jurors in person

was error. As was the case in the district court, George

argued only that the district court’s rulings on

Bethlehem’s challenges for cause were incorrect, and that

the district court erred in failing to order the creation of a

transcript, post hoc, of the disqualified jurors’ responses.

This Court generally will not rule on issues that are

raised for the first time on appeal. Singleton v. Wulff, 428

U.S. 106, 120 (1976); Helvering v. Wood, 309 U.S. 344,

348-49 (1940). George’s claim that the trial judge should

have been present at voir dire has been waived.

D. The procedure by which the jury was selected

was procedurally and substantively fair to both

parties.

The procedures employed by the district court dur-

ing jury selection were proper. Under Fed. R. Civ. P. 47(a),

the court “may permit the parties or their attorneys to

conduct the examination of prospective jurors ....” Rule

47(a) does not expressly require the continued presence

of the judge during jury selection, and district courts in

Pennsylvania have long followed the practice of having

counsel conduct voir dire in the presence of a deputy clerk

but without the trial judge present. See, Kerr, “Varieties in

Jury Selection Methods,” 44 F.R.D. 245, 285-86 (10th Cir.

Jud. Conf. 1967) (civil voir dire); Local Rule 47.1 of the

Western District of Pennsylvania; cf. Stirone v. U.S., 341

F.2d. 253, 255-56 (3d Cir.), cert. denied, 381 U.S. 902 (1965)

10

(upholding use of the same practice in criminal voir dire).

Similarly, the state courts in New York encourage counsel

to conduct voir dire in civil cases in the absence of the trial

judge, at least where, as here, neither party insists that

the trial judge be present at all times during questioning.

See New York C.P.L.R. 4107 (McKinney’s 1992).!

The trial judge’s denial of the plaintiff’s request for a

transcript was proper, because counsel for the parties

were in full agreement about what the prospective jurors’

responses had been. (Ct. App. Jt. App., Vol. 8, 569,

571-72). Moreover, a juror’s recitation of what he or she

said in response to voir dire questions is not intrinsically

more reliable than the summaries of counsel, to which

both sides agreed. In such circumstances, a transcript is

unnecessary, and certainly not needed for effective appel-

late review. Indeed, the Federal Rules of Appellate Pro-

cedure expressly contemplate that federal appeals courts

may review untranscribed proceedings where counsel

have agreed on the contents of the record, Fed. R. App. P.

10(d); and the district court is responsible for declaring

the contents of the record where agreement cannot be

reached, Fed. R. App. P. 10(c).2 The district court was

1 Bethlehem Steel need not address whether voir dire may

be conducted in the absence of the trial judge where one party

has insisted on the judge’s presence during all phases of voir

dire. This case does not present that issue. Nor does this case

involve a question of whether the trial judge must interview

jurors as to whom a challenge for cause has been made, because

George did not timely request such interviews.

2 The district court noted on the record that the plaintiff

failed to request that voir dire be recorded. (Ct. App. Jt. App.,

Vol. 8, 571).

11

entirely justified in accepting the parties’ fully consistent

representations as to what had occurred at voir dire, and

ruling on that basis.

E. The district court’s rulings during jury selec-

tion were correct on the merits.

Finally, the trial judge’s rulings on Bethlehem Steel’s

challenges for cause were correct on the merits. The dis-

trict court has wide discretion in ruling on challenges for

cause and wili be reversed only if there is a manifest

abuse of such discretion. 5A Moore’s Federal Practice,

{ 47.07[2], n.4 (2d ed. 1994). A prospective juror’s

involvement in a dispute similar to that being tried is a

proper basis for granting a challenge for cause. Vanskike v.

ACF Industries, Inc., supra, 665 F.2d at 207; accord Consoli-

dated Gas & Equipment Co. v. Carver, 257 F.2d 111 (10th Cir.

1958) (new trial required where one of the jurors who

participated in the verdict was a party plaintiff in a

similar lawsuit). In this case, the district court carefully

articulated the reasons for its rulings (Ct. App. Jt. App.,

Vol. 8, 570-71, 573-74), and there is no reasonable argu-

ment that the district court’s decision was an abuse of the

broad discretion vested in the district court in ruling on

challenges for cause.

II. The district court’s order in limine involved a rou-

tine application of settled law to the facts of this

case. Review by this Court of that decision is not

warranted.

The district court properly ruled that evidence about

other employment decisions made by persons not

12

involved in the decision to terminate George’s employ-

ment would not have assisted the jury in resolving

George’s claim of discriminatory termination. (See George

Pet. 4a-21a). Such evidence would not have tended to

show that Robert Funk, the person who terminated

George, intentionally discriminated on the basis of age.

Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)

(O’Connor, J., concurring); Ezold v. Wolf, Block, Schorr &

Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992), cert. denied,

___ U.S. ___, 114 S.Ct. 88 (1993); Fortino v. Quasar Co., 950

F.2d 389, 395 (7th Cir. 1991); Williams v. Williams Elec-

tronics, Inc., 856 F.2d 920, 925 (7th Cir. 1988).

The district court also correctly ruled that Bethlehem

Steel’s obligation under the ADEA was to avoid discrimina-

tion in the termination decision it actually made, and that the

company had no obligation to permit George to “bump”

younger employees or otherwise find him alternative

employment. Earley v. Champion International Corp., 907 F.2d

1077, 1083 (11th Cir. 1990); Ridenour v. Lawson Company, 791

F.2d 52, 57 (6th Cir. 1986); Sahadi v. Reynolds Chemical, 636

F.2d 1116, 1117 (6th Cir. 1980); E.E.0.C. v. United States Steel,

649 F. Supp. 964, 966 n.1 (W.D. Pa. 1986).

The district court’s rulings were well within the

bounds of the discretion afforded the trial court in decid-

ing upon the admissibility of evidence. Since the court’s

rulings on relevance involved only the application of

settled law to the special facts of this case, discretionary

review of those decisions by this Court is neither neces-

sary nor warranted.

13

CONCLUSION

For the foregoing reasons, Respondent Bethlehem

Steel Corporation respectfully requests that the Court

deny George’s Petition for Writ of Certiorari.

Respectfully submitted,

Dona S. KAHN*

RIcHARD G. TuTTLE

ANDERSON Kit Otuick &

OsHinsky P.C.

Fourteenth Floor

1600 Market Street

Philadelphia, Pennsylvania 19103

(215) 568-4202

Counsel for Respondent

Bethlehem Steel Corporation

* Counsel of Record for Respondent

Dated: November 10, 1994

App. 1

BETHLEHEM STEEL CORPORATION

SUBSIDIARY COMPANIES

Included in the Consolidated Accounts

September 30, 1994

Organized Subsidiary

Under the of

Name Laws of Company(s)

1 BGA Drill Rig

Corporation Delaware 12

2 Belem-

Administracoes e

Participacoes Ltda. Brazil 12

3 BethEnergy Mines

Inc. West Virginia 12

4 BethFargo, Inc. Pennsylvania 12

5 Bethintermodal, Inc. Delaware 39

6 Bethlehem Blank

Welding, Inc. Delaware 12

7 Bethlehem

Development

Corporation Delaware 12

8 Bethelehem Hibbing

Corporation Minnesota 12

9 Bethelehem

Industries

Corporation Delaware 12

10 Bethelehem Rail

Corporation Delaware 12

11 Bethelehem Rail

Corporation Delaware 12

12 Bethelehem Steel

Corporation Delaware (b)

13. Bethelehem Steel de

Mexico, S.A. de

C.V. Mexico 15

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

(c)

30

31

App. 2

Bethelehem Steel

Export Company of

Canada, Limited

Bethelehem Steel

Export Corporation

Bethelehem Steel

International

Corporation

Bethelehem Steel

(Thailand) Limited

Bethelehem

Structural Products

Corporation

BethSystems, Inc.

BETHTRAN, Inc.

Cambria and

Indiana Railroad

Company

CARRIER EXPRESS,

INC.

Chesapeake Energy

Services, Inc.

Conemaugh & Black

Lick Railroad

Company

EGL Steel Inc.

Eagle Nest Inc.

Greenwood Mining

Corporation

HPM Corporation

Hibbing Land

Corporation

Hibbing Taconite

Company

IPV Inc.

Interocean Shipping

Company

Delaware

Delaware

Delaware

Delaware

Pennsylvania

Delaware

Delaware

Pennsylvania

Delaware

Delaware

Pennsylvania

Delaware

Delaware

Pennsylvania

Delaware

Delaware

Minnesota

Delaware

Liberia

12

12

App. 3

32 Kenacre Land

Corporation Delaware 12

33. Manufacturers

Water Company,

The Pennsylvania 12

34 Marmoraton Mining

Company, Ltd. Delaware 12

35 Mississippi Coatings

Limited Corporation Delaware 12 |

36 Mississippi Coatings |

Line Corporation Delaware 12

37 Patapsco & Back

Rivers Railroad

Company Maryland 12

38 Pennsylvania Steel

Technologies, Inc. | Pennsylvania 12

39 Philadelphia,

Bethlehem and New

England Railroad

Company Pennsylvania 12

40 Primeacre Land

Corporation Delaware 12

41 South Buffalo

Railway Company New York 12

42 Steelton &

Highspire Railroad

Company Pennsylvania 12

(a) 100% owned unless otherwise indicated.

(b) Parent Corporation; stock held by the public.

(c) A joint venture, 70.3083% owned by Bethelehem

Hibbing Corporation, including indirect owners through

Hibbing Development Company, a partnership.

App. 4

BETHLEHEM STEEL CORPORATION

ENTERPRISES NOT CONSOLIDATED

(Interest owned, except where noted or ancicated)

September 30, 1994

Name

DIRECT OWNERSHIP - (Interest

owned by Bethelehem Steel

Corporation or a consolidated

susidiary)

50% or Less Owned:

1 Chiles-Alexander

International Inc.

2 Double G Coatings

Company, L.P.

3. Double G Coatings,

Inc.

4 Empreendimentos

Brasileiros de

Minaracao S.A.-

E.B.M.

5 G&A Limited

Partnership III - A

6 Griffin-Alexander

International, Inc.

India Offshore Inc.

Indiana Pickling and

Processing Company,

an Indiana General

CoN]

Partnership

9 Iron Ore Company

of Canada

10 CENTEC Company, a

Joint Venture

Organized Percent of

Under Voting

the Laws of Securities

Delaware 2.97 (a)

Delaware 50 (j)

Delaware 50 (k)

Brazil 9.898 (b)

Texas - (a)(20%

owned)

Delaware 40 (a)

Delaware 40 (a)

Indiana 20 (i)

Delaware 34.51 (c)

Pennsylvania 50 (d)

11

12

13

14

15

Over 50% Owned:

Ontario Iron

1

2

Precision Blank

Welding, L.L.C.

Presque Isle

Corporation

Scadrill, Inc.

App. 5

Michigan

Delaware

Delaware

Walbridge Coatings,

an Illinois

Partnership

Rig V Limited

Partnership

Company

Rig VI Limited

Partnership

Illinois

Delaware

Minnesota

Delaware

Bethlehem Singapore

Private Limited

Singapore

INDIRECT OWNERSHIP-

(Percentage indicated

with reference to

direct owner’s interest)

Carol Lake Company, Ltd. Canada

Gulf Power Company

Canada

Quebec North Shore and

Labrador Railway

Company Inc.

Ratty Metals, Ltd.

Canada

Canada

Northern Land Company,

Limited

Schefferville Power

Company

Canada

Canada

50 (i)

16.5

19

- (e)(37.5%

owned)

* (a)(27%

owned)

90 (f)

- (a)(78.95%

owned)

70 (c)

100 (g)

100 (g)

100 (g)

100 (g)

50 (g)

50 (g)

App. 6

Twin Falls Power

Corporation Limited Canada 49.61 (g)

Mineracoes Brasileiras

Reunidias-MBR Brazil 51 (h)

(k)

(1)

Owned by BGA Drill Rig Corp.

Owned by Belem-Administracoes a Participacoes Ltda.

Owned by Bethlehem Steel International Corporation.

Owned by Bethlehem Roll Corporation.

Owned by EGL Steel Inc.

Owned by Bethlehem Hibbing Corporation.

Owned by Iron Ore Company of Canada.

Owned by Empreendimentos Brasileiros de Mineracao

S.A.-E.B.M.

Owned by IPV Inc.

49% owned by Mississippi Coatings Limited

Corporation, and 1% through Double G Coatings, Inc.

Owned by Mississippi Coatings Line Corporation.

Owned by Bethlehem Blank Welding, Inc.