United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 14-1268 

DOVER HIGH PERFORMANCE PLASTICS,

INC.,

Respondent. 

ON BRIEFS:

Ronald J. Gottlieb, Senior Appellate Attorney; Charles F. James, Counsel for Appellate 

Litigation; Ann S. Rosenthal, Associate Solicitor of Labor for Occupational Safety and Health; 

Katherine E. Bissell, Deputy Solicitor for Regional Enforcement, U.S. Department of Labor, 

Washington, D.C.

 For the Complainant

Mark D. Katz, Esq., Ulmer & Berne LLP, Cleveland, OH

 For the Respondent

DECISION

Before: SULLIVAN, Chairman; ATTWOOD and LAIHOW, Commissioners

BY THE COMMISSION:

Dover High Performance Plastics, Inc. fabricates custom plastic parts. In April 2014, the 

Occupational Safety and Health Administration conducted an inspection of the company’s Dover, 

Ohio, facility in response to an employee complaint. Following the inspection, OSHA issued 

Dover a single-item willful citation alleging a violation of 29 C.F.R. § 1910.212(a)(1) for failing 

to provide adequate guarding on seven of its computer-numerically-controlled machines, 

specifically five lathes and two mills. 

Following a hearing, Administrative Law Judge Dennis L. Phillips affirmed the citation as 

willful and assessed the proposed $49,000 penalty. For the reasons set forth below, we affirm the 

citation only with respect to the lathes, recharacterize the violation as serious, and assess a $3,500

penalty. 
2 

BACKGROUND

Dover uses lathes and mills to manufacture a variety of plastic parts. Both types of 

machines are enclosed and have openings with doors that provide operators access to the inside of 

the machine.

1

 It is undisputed that at the time of the citation, Dover’s operators used both the 

lathes and mills with the doors either open or removed. 

When operating the lathes, Dover operators place a plastic blank on the machine’s spindle 

by reaching approximately two feet inside the lathe’s opening, which is approximately 17 inches 

wide and extends from the operator’s hips to shoulders. The operator then presses a button outside 

the enclosure to begin the production cycle, during which the spindle rotates at speeds of 250 to 

1200 revolutions per minute, while cutting tools held in a turret move into the blank and fashion 

the plastic part. The lathe’s production cycle lasts anywhere from ten seconds to two minutes, at 

which point the turret automatically withdraws from the finished part and the spindle stops

rotating. The operator then reaches back into the machine, removes the completed part, and begins 

the process again by inserting a new blank.2

When operating the mills, Dover operators place a plastic blank on a fixture that is mounted 

to a moveable table positioned near each mill’s opening. The operator then activates the mill by 

pressing a button outside the opening. The mill’s table moves back approximately 32 inches and 

a vertical spindle that is holding and spinning a cutting tool descends into the blank. Once the 

cutting tool is finished, it automatically ascends, and the table returns to its original position. A 

hand-held air hose hangs near each mill’s opening, and inside each mill near the cutting tool is an 

air-line designed to keep chips off the tool. 

In 2012, a Dover operator was injured while operating a lathe. The operator had reached 

his hand into the opening to adjust a “crooked” part. At the time, the lathes were programmed to 

start automatically, so operators had a predetermined amount of time to unload a completed part 

and load a new blank before the next production cycle began. The operator did not withdraw his 

1 In 2007, OSHA issued Dover a citation for failing to guard its mills in violation of the same 

machine guarding standard at issue here. In settling that citation, the company represented to 

OSHA in a corrective action worksheet that it installed the doors on the machines. 

2 This process is known as a “hand-fed” job. Lathe operators also perform “rod-fed” jobs, which 

can take up to four hours and do not require manually loading or unloading plastic pieces. Rather, 

the lathe automatically advances a portion of a plastic rod onto the spindle. An air nozzle mounted 

near the spindle is available to blow chips and shavings away from the moving parts. On review, 

the Secretary does not allege a violation with respect to rod-fed jobs. 
3 

hand before the next cycle began and the cutting tool cut the back of his hand. After the accident, 

Dover reprogrammed its lathes so that the machines stop but do not power off between production 

cycles, and the operators must manually push a button to initiate the next cycle. 

DISCUSSION

The cited provision, in relevant part, requires that:

One or more methods of machine guarding shall be provided to protect the operator 

and other employees in the machine area from hazards such as those created by 

point of operation, ingoing nip points, rotating parts, flying chips and sparks. 

29 C.F.R. § 1910.212(a)(1). The only element of the Secretary’s prima facie case at issue on 

review is whether Dover’s lathe and mill operators were exposed to the violative condition.3

 

A. Exposure

To prove exposure, “the Secretary must show either that Respondent’s employees were 

actually exposed to the violative condition or that it is ‘reasonably predictable . . . by operational 

necessity or otherwise (including inadvertence), that employees have been, are, or will be in the 

zone of danger.’ ” S & G Packaging Co., 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001) (quoting 

Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citations 

omitted); see also Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) 

(“Exposure to a violative condition may be established by showing actual exposure or that access 

to the hazard was reasonably predictable.”), aff’d, 79 F.3d 1146 (5th Cir. 1996) (unpublished)

(emphasis added). The “zone of danger” is defined as the “area surrounding the violative condition 

that presents the danger to employees [that] the standard is intended to prevent.” RGM Constr. 

Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995); see also Gilles & Cotting, Inc., 3 BNA 

OSHC 2002, 2003 (No. 504, 1976) (identifying three different zones of danger relating to a 

scaffolding violation: the swing platform employees were working on; the impact area under the 

3 To establish a violation, “the Secretary must show by a preponderance of the evidence that: (1) 

the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees 

had access to the violative condition, and (4) the cited employer either knew or could have known 

of the condition with the exercise of reasonable diligence.” Astra Pharm. Prods., Inc., 9 BNA 

OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). Dover 

does not challenge the judge’s finding that the Secretary established noncompliance with the cited 

standard. On review, the parties were asked to brief exposure and characterization, the only two 

issues raised in Dover’s petition for discretionary review. The Commission generally does not 

consider issues not raised by the parties on review, and we therefore decline to review the judge’s 

finding of noncompliance here. See P. Gioioso & Sons, Inc., 6 BNA OSHC 1617, 1618 (No. 

16215, 1978) (Commission declined to review judge’s rulings on remaining alleged violations 

where the parties did not take issue with them); 29 C.F.R. § 2200.92(a). 
4 

platform where tools and equipment could be strewn; and the rooftop area affected by the 

platform’s supporting structure); Fabricated Metal, 18 BNA OSHC at 1074 (finding that the zones 

of danger were the unguarded points of operation and camshafts, as the citation alleged violations 

of 29 C.F.R. § 1910.212(a)(3)(ii) (unguarded point of operation) and § 1910.219(c)(2) (unguarded 

horizontal shafting)). “The scope of the zone of danger is relative to the wording of the standard 

and the nature of the hazard at issue.” Fabricated Metal, 18 BNA OSHC at 1074 n.7 (citing Gilles

& Cotting, 3 BNA OSHC at 2003). 

Here, the citation does not define the zone of danger on either machine, but simply states 

that “employees operated [the machines] without adequate guarding to protect employees from the 

moving parts.” Before the judge, the Secretary maintained that the zone of danger is within the 

confines of the machines, “where the employees are exposed to the hazards of moving parts, pinch 

points, rotating parts, and entanglements.” The judge agreed, finding that “the zone of danger 

includes the confines of the machine” because the Secretary established that “the machine’s 

moving parts can be accessed from any place within the machine when the . . . door is open.” On 

review, Dover argues this was error, pointing to the fact that the rotating spindle and tool are both 

located at least two feet within each machine’s enclosure. 

We agree with the company. The text of § 1910.212(a)(1) dictates that the zone of danger 

only includes areas that present “hazards such as those created by . . . point of operation ingoing 

nip points, rotating parts, [or] flying chips and sparks.” 29 C.F.R. § 1910.212(a)(1). Because there 

is no dispute that these “hazards” require contact with the unguarded moving parts, the zone of 

danger does not include the entire enclosure of each machine—that is, areas within the enclosure 

where contact is not possible. Rather, the zone of danger is limited to the area surrounding the 

rotating spindle or tool where contact may be possible. Thus, the question before us is whether

the Secretary has established that it was reasonably predictable Dover’s operators would come 

sufficiently close to the moving parts inside the lathes and mills so as to be exposed to the cited 

hazard. Fabricated Metal, 18 BNA OSHC at 1074.

Lathes 

The judge concluded that it was “reasonably predictable that a lathe operator would 

misjudge the machine’s timing and make contact with the point of operation during a production 

cycle,” as “employees will not be able to maintain the constant vigilance and perfect timing” that 

the fast-paced, repetitive production cycle requires. Specifically, the judge found that because the 

operator manually unloads the finished part but does not manually control the end of the cycle 
5 

(i.e., stopping the spindle from spinning), the operator can easily misjudge when the spindle will 

stop and reach in to unload the finished part, clean shavings, or adjust air hoses while the spindle 

is still rotating. 

On review, Dover argues that the judge’s reasoning is flawed because the operators, “due 

to their familiarity with the equipment, could easily determine when the rotation of the spindle had 

stopped” and would therefore only perform tasks inside the confines of the machines between 

production cycles.4 We disagree. The record shows that the lathe’s production cycle takes 

anywhere from ten seconds to two minutes. Therefore, as the Secretary estimates—without 

challenge from Dover—each operator places their hands inside the lathe “up to 600 times or more 

a day, when they insert and remove plastic on the spindle.” The record also shows that their hands 

come within less than an inch of the spindle each time they reach into the lathe. Thus, as the judge

found, operating the lathes requires Dover’s operators to time their entry to the end of a production 

cycle, and making such quick, repetitive judgments is subject to error, particularly when performed 

by less experienced operators. See Slyter Chair, Inc., 4 BNA OSHC 1110, 1111-12 (No. 1263, 

1976) (protections included in machine guarding standard were designed to protect against human 

error). Indeed, the lathe operator’s injury in 2012 occurred when he misjudged the start of the 

production cycle, which at the time was programmed to occur automatically, and made contact 

with the cutting tool as it moved towards the spindle.

5

 Under these circumstances, we conclude 

that it is reasonably predictable, irrespective of their experience or familiarity with the lathes, that 

operators could misjudge when the spindle stopped rotating and thereby inadvertently enter the 

zone of danger posed by the lathes’ unguarded moving parts.

6

 

4 Dover also contests the judge’s finding of exposure as to the lathes based, in part, on “the 

recurring need to clear out debris from inside the machines by hand and air wands[.]” Given our 

conclusion that exposure is established on other grounds, we need not address this claim. 

5

 Quoting Rockwell International Corp., 9 BNA OSHC 1092, 1098 (No. 12470, 1980), Dover 

argues that the absence of any injuries since it reprogrammed its lathes following the 2012 incident 

“buttresses [its] contention of no exposure to injury.” In Rockwell, however, the Commission 

found that the Secretary’s theory of exposure was “wholly speculative,” as operators did not hold 

the pieces being worked upon and had no cause to place their hands under the descending ram of 

the cited machines. Id. In contrast, the operators here were required to repeatedly place their 

hands inside the lathe and time their actions to avoid contacting the machine’s moving parts. 

6

 Dover points to prior Commission cases where exposure was not established and argues that the 

distance between the operator and the moving parts here was greater than in those cases. In all the 

cases cited by Dover, however, the Commission emphasized that there is no hard and fast rule for 

determining exposure in a machine guarding case—rather, exposure must be determined on a case-
6 

 Mills

The judge concluded that it was reasonably predictable the mill operators would enter the 

machine’s zone of danger based on two factual findings: (1) the operator could reach into the mill 

to remove debris during the production cycle; and (2) while standing outside the mill during the 

operating cycle, the operator could “somehow” enter the confines of the mill, including by being 

accidently bumped into it by another worker. On review, the Secretary adds that employee 

exposure was also reasonably predictable whenever an operator had to adjust air nozzles that are 

mounted inside each mill. 

The record, however, does not support finding exposure under any of these theories. With 

regard to the judge’s first theory, George Bitikofer, the employee who operates both mills at issue,

testified that when clearing accumulated debris with the hand-held air hose that hangs by the 

machine’s opening, there is no need to lean into the machine to get the hose’s nozzle closer to the 

shavings. Similarly, he testified that when debris accumulates in a chip tray, he removes and 

cleans the tray when the mill is in shutdown mode, “completely stopped.” 

 As to the judge’s second theory, the Secretary has provided no evidence regarding the 

actual distances among the facility’s machines, all of which are located in the same work area. As 

such, there is simply no basis on which to find that the machines are in close proximity. Moreover,

the record lacks details regarding the arrangement of the machines or how close employees were 

to each other such that accidental contact between or among them was possible.7 In fact, Matthew 

by-case basis depending on “the manner in which the machine functions and the way it is 

operated.” Jefferson Smurfit Corp., 15 BNA OSHC 1419, 1421 (No. 89-553, 1991); Fabricated 

Metal, 18 BNA OSHC at 1074. As such, it is irrelevant that the distance between the operator and 

lathe’s moving parts may be greater here than in previous cases. It is simply enough that the 

Secretary established, based on “the manner in which the [lathe] functions,” that operator exposure 

to the moving parts of the lathes was reasonably predictable. Id. 

7 The Secretary does not rely on the possibility of tripping or slipping from something on the floor 

as the cause of Dover’s employees bumping into each other. Indeed, aside from the parties’ 

stipulation that “[t]here was no oil or other substance on the floor in the area of the cited machines 

which cause [sic] an operator to lose his footing” (which would undermine any such claim), there 

is no mention in the record of anything on the floor that could cause a slip or trip. As for any other 

inadvertent contact between workers, the record fails to establish that such contact could result in 

reasonably predictable contact with a mill’s moving part, particularly where those parts are located 

at least two feet within the confines of the enclosed machine. See Fabricated Metal, 18 BNA 

OSHC at 1075 (inadvertent contact from slip or fall too remote where employees remained at least 

one to two feet away from shaft and splash guards, other containers blocked easy access to shaft, 

and shaft was two feet above the floor and slightly recessed). 
7 

Bitikofer, with twenty-two years of experience as an operator at Dover, and vice-president Jeffrey 

Stingel, who has worked for Dover since it was formed in 1990, both testified that they had neither 

“experienced such a bumping [n]or had [they] seen or heard of any such incident.”8

Finally, as to the Secretary’s theory that exposure was reasonably predictable when 

operators adjust air nozzles mounted inside the mills, there is no evidence that the mills were

running when operators performed this task or that there was any reason why they might be 

inclined to do so.9 For all these reasons, we find that the Secretary has failed to establish exposure 

with respect to the mills and affirm the citation only with respect to the lathes. 

B. Characterization 

“Willful violations are characterized by an intentional or knowing disregard for the 

requirements of the Act or a plain indifference to employee safety, in which the employer manifests 

a heightened awareness that its conduct violates the Act or that the conditions at its workplace 

present a hazard.” Barbosa Grp., Inc., 21 BNA OSHC 1865, 1868 (No. 02-0865, 2007) 

(quotations omitted). However, “[t]he Commission, and many circuit courts, have long held that 

a violation is not willful if the employer shows that it ‘exhibited a good faith, reasonable belief 

that its conduct conformed to law.’ ” Jim Boyd Constr., Inc., 26 BNA OSHC 1109, 1112 (No. 11-

2559, 2016) (quoting Am. Wrecking Corp. v. Sec’y of Labor, 351 F.3d 1254, 1263 (D.C. Cir. 

2003)). To establish good faith, the employer bears the burden of proving that its belief was 

objectively reasonable under the circumstances or, in other words, “nonfrivolous.” MorrisonKnudsen Co., 16 BNA OSHC 1105, 1124 (No. 88-0572, 1993) (quoting McLaughlin v. Union Oil 

8 To the extent the Secretary argues that contact with the mill’s spindle (which holds the tool) was 

reasonably predictable because operators repetitively reach in to load and unload parts, this theory 

is also unsupported by the record. Unlike the lathe, the blank is loaded onto—and the completed 

part is unloaded from—a stationary fixture on the mill’s table, and no machining takes place until 

the table moves from the “home” position near the operator to a point 32 inches away where the 

spindle descends from its retracted position. The spindle therefore does not come near the part 

being machined until the table moves 32 inches away from the operator. Similarly, when the 

operator rotates the part for additional machining, or removes the completed part, the table is in 

the home position and the spindle is in its retracted position. In short, unlike the lathes, there is no

possibility of mistiming a mill’s cycle and inadvertently contacting the spindle. 

9 Although not explicitly relied on by the Secretary, we note that testimony from his expert witness 

suggests that operators occasionally use the hand-held air hose to remove “[s]ome of the chips 

[that] get into every little ninny and crack in the back. [In] [s]ome cases you’ve got to get very 

close if you want to thoroughly get them out of there . . . .” At the same time, though, the expert 

acknowledged that “it doesn’t take a lot of air pressure to move the [plastic or] metal chips[,]” 

which undermines his claim that the air hose must be positioned close to the debris to remove it. 
8 

Co. of Cal., 869 F.2d 1039, 1047 (7th Cir. 1989)); see also N. Landing Line Constr. Co., 19 BNA 

OSHC 1465, 1476 (No. 96-0721, 2001). 

In affirming the violation as willful, the judge found that Dover had a heightened awareness 

of the cited standard’s requirement to guard against moving parts due to (1) the 2007 prior citation 

and the company’s means of abatement (installing guards); (2) warnings given to operators and 

posted on the machines;10 and (3) the 2012 accident involving the lathe operator. The judge also 

found that “[d]espite its heightened awareness . . . , Dover continued to operate with the [machine] 

doors open in disregard of the standard’s requirements and with indifference to the safety of its 

employees.” Finally, the judge rejected Dover’s good faith belief defense, finding the company’s 

belief that it was in compliance with the standard was not objectively reasonable.

On review, Dover asserts, as it did before the judge, that it reasonably believed its 

reprogramming of the lathes following the 2012 accident obviated the need for guards because the 

reprogramming eliminated the most obvious aspect of the hazard—that an employee could be 

injured by the component of the lathe that begins to move when the production cycle automatically 

commences. In other words, Dover contends that it reasonably believed the employees’ only

exposure to moving parts was from the lathe’s automatic start-up, so the programming change 

effectively eliminated all exposure to the lathe’s moving parts and thus it was complying with the 

cited standard. In response, the Secretary contends that Dover’s belief was frivolous because the 

reprogramming did not make a material change to the way the lathes operate. 

We find that the record supports Dover’s contention. Contrary to the Secretary’s assertion, 

the reprogramming did make a material change—it eliminated the commencement of the 

production cycle before the operator has withdrawn his hand from the area surrounding the rotating 

spindle or tool where contact is possible. And, given that Dover was focused on the cause of the 

2012 accident when it made that change, we find it was objectively reasonable for the company to 

believe this eliminated all exposure to the moving parts.

11 Compare Morrison-Knudsen, 16 BNA 

OSHC at 1127 (employer’s failure to implement engineering controls and respiratory program was 

10 The warning signs read “[d]o not attempt to put hands in beyond the oil guard while the machine 

is in operation and “[s]plash guards must be in closed position and engaged in interlock system” 

before starting the machine cycle. 

11 We note that lathe operator Matthew Bitikofer testified that he writes the computer code for the 

lathes and mills, and wrote the code for the lathe reprogramming after the 2012 accident. The fact 

that the machines’ programmer is also an operator further supports the reasonableness of Dover’s 

belief.
9 

“unreasonably limited”), with Spirit Homes, Inc., 20 BNA OSHC 1629, 1631 (Nos. 00-1807, 00-

1808, 2004) (finding employer’s numerous effective measures to prevent any unsecured tools and 

roofing material from being knocked off the scaffold were not implemented in a “’half-hearted’ 

manner so lacking in good faith and reasonableness as to establish willfulness”). 

The reasonableness of Dover’s belief is further bolstered by the testimony of its operators,

who explained that they performed tasks inside the machine, such as inserting and removing parts, 

adjusting mounted air nozzles, and removing debris, only after the lathe’s parts stopped moving. 

Dover’s operators also stated that while the lathe was running they remained stationed at the 

opening of the enclosure, approximately two feet away from the moving parts. This testimony, 

coupled with Dover’s efforts to reprogram the machine to address the cause of the 2012 accident, 

establishes the reasonableness of the company’s belief that it was in compliance with the standard. 

For the same reasons, we reject the judge’s reliance on the lathe’s warning signs as a basis for 

willfulness, which Dover could reasonably have believed were rendered inapplicable given the 

programming change and the fact that the company was machining plastic not metal.

12 

Accordingly, we recharacterize the violation as serious. 

C. Penalty

 The judge assessed the proposed $7,000 penalty for each of the seven instances alleged in 

the citation, for a total penalty of $49,000. On review, Dover does not dispute the penalty amount. 

Because we affirm the citation only with respect to the lathes and recharacterize the violation as 

serious, we find that a total penalty of $3,500 is appropriate under the circumstances. See 29 

U.S.C. § 666(j) (penalty assessment factors). 

12 Dover claims that the warning signs are inapplicable because it manufactures plastic parts, which 

do not require oil or a similar lubricant when they are being tooled, and the manufacturer expected 

the machines to be used for metal parts. We find Dover’s belief objectively reasonable yet 

misplaced. The distinction between machining plastic and metal does not change the fact that 

operators could still misjudge the end of a lathe’s production cycle and enter the zone of danger.
10 

ORDER

We affirm the citation only with respect to the lathes, recharacterize the violation as serious, 

and assess a total penalty of $3,500.

SO ORDERED.

/s/_________________________ 

James J. Sullivan, Jr. 

Chairman

 

/s/_________________________ 

Cynthia L. Attwood 

Commissioner 

/s/_________________________ 

Amanda Wood Laihow 

Dated: September 25, 2020 Commissioner
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 14-1268

Dover High Performance Plastics, 

 Respondent.

APPEARANCES: 

Patrick DePace, Esquire,

Department of Labor, Office of the Solicitor, 

Cleveland, Ohio

For the Secretary

Mark D. Katz, Esquire, 

Ulmer & Berne LLP, 

Cleveland, Ohio

 For Respondent

BEFORE: 

Dennis L. Phillips

 Administrative Law Judge
- 2 - 

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (the 

Commission or OSHRC) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 659(c) (the Act). On April 4, 2014, Compliance Officer (CO) Matthew Marcinko began an 

inspection of Dover High Performance Plastics (Dover or Respondent) in response to a complaint of 

several safety issues, including Computer Numerical Control (CNC) lathes and mills being operated 

without necessary guards.13 Dover is located at 140 Williams Drive NW, Dover, Ohio and manufactures 

plastic products. 

On July 23, 2014, the Occupational Safety and Health Administration (OSHA) issued a citation 

and notification of penalty (citation) to Respondent. The citation alleged one willful violation of the 

machine guarding standard with a proposed penalty of $49,000. Dover timely contested the citation.

A two-day hearing was held in Cleveland, Ohio on May 5-6, 2015. Seven witnesses testified at 

the hearing: CO Marcinko; Jeffrey Stingel, vice president of manufacturing; Paul Palmer, vice president

of sales and marketing; George Bitikofer, mill operator; Matthew Bitikofer, lathe operator; Brian 

Bitikofer, sales and new business development manager; and Seth McCoy, lathe operator. Both parties 

simultaneously filed post-hearing briefs and reply briefs. Respondent filed a supplemental brief and the 

Secretary filed a reply to the supplemental brief.14 The primary issue in dispute is whether Dover’s 

employees were exposed to the unguarded moving parts of the cited CNC15 lathes and mills. 

For the reasons that follow, the Court affirms the citation and assesses a total penalty of $49,000. 

13 ANSI B11.23-2002 (Safety Requirements for Machining Centers and Automatic, Numerically Controlled Milling, 

Drilling and Boring Machines) (Approved June 14, 2002) (ANSI B11.23-2002) defines guard as “[a] barrier, which 

prevents entry into the work zone or other hazard area [zone].” ANSI B11.22-2002 (Safety Requirements for 

Turning Centers and Automatic, Numerically Controlled Turning Machines) (ANSI B11.22-2002) similarly defines 

a guard. (Exs. 8, p. 11, 9, p. 11). 

14 The Court granted Respondent’s motion to file a supplement brief in response to the Eighth Circuit’s decision of 

October 13, 2015 in Sec’y of Labor v. Loren Cook Co., 803 F.3d 935 (8th Cir. 2015) (en banc). 15 ANSI B11.23-2002 defines CNC as the automatic control of a process performed by a device that makes use of 

numeric data introduced while the operation is in progress. (Ex. 8, p. 12). 
- 3 - 

Admitted Facts

The parties submitted the following admitted facts in their Joint Pre-Hearing Statement. (See

Joint Pre-Hearing Statement, pp. 4-5 Admitted Facts #1 through #10 (JPHS Fact #)).

1. The moving parts of the cited machines are approximately two feet within the confines of the 

machine.

2. OSHA took no measurements of the distance between any part of the operator’s body and the 

moving parts of the machines.

3. OSHA took no photos of any part of an operator’s body entering the zone of danger on the 

cited machines. 

4. None of OSHA’s interview statements of the machine operators state the distance of any part 

of their bodies from the moving parts of the machines while they are operating.

5. The same condition was previously cited by OSHA, however the alleged hazard was 

designated to have “Low probability” at that time.

6. Interlocks are not required under the cited standard. 

7. The alleged hazard of parts being manufactured and/or tooling from the machines being ejected

from the machine are not mentioned anywhere in the OSHA investigation file.

 8. There is no operational need for the operator to have any part of his body within the zone of 

danger or the confines of the cited machines.16

9. There was no oil or other substance on the floor in the area of the cited machines which cause 

an operator to lose his footing.

10. The Compliance Officer, in recommending the subject citation used as a standard that 

1910.212 was violated if it was “possible” that an employee could have any part of his body enter the 

zone of danger on the cited machines.

16 During the hearing, the parties clarified JPHS Fact # 8 applied when the machines are running. (Tr. 403-04).
- 4 - 

Jurisdiction

Based upon the record, the Court finds Respondent, at all relevant times, was engaged in a 

business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) of the 

Act, 29 U.S.C. §§ 652(3) and (5).

17 The Court concludes that the Commission has jurisdiction over the 

parties and subject matter in this case. 

Background & Relevant Testimony

Dover fabricates high performance plastic parts for companies throughout the world; including

valve manufacturers, such as Warren Rupp, and the automotive, aerospace, and road equipment

industries. Dover has approximately 40 employees. It produces parts made out of 

polytetrafluoroethylene, also known as Teflon, and other materials including nylons. Dover’s machines 

compress and mold polytetrafluoroethylene. The company uses 25 to 30 machines to manufacture more 

than 7,000 different parts. These parts include gaskets, washers, insulators and seals. (Tr. 47-50, 53). 

Machines at Dover

Dover uses different machines to manufacturer its parts, including automatic molding pressers, 

Brown & Sharpe screw machines, drill presses, CNC mills, CNC lathes and engine lathes.18 The citation 

alleges five Miyano CNC lathe and two Excell CNC mill machines were operated without proper 

guarding of the machine’s moving parts. The five CNC lathes are referred to individually as lathe #7, 

lathe #15, lathe #19, lathe #37, and lathe #38. The two CNC mills are referred to individually as mill 

#510 and mill #810. Dover purchased the machines in used condition in the late 1990s, with the 

exception of mill #810, which was purchased in about 2007. (Tr. 53-55, 145, 171). 

17 Respondent admitted it was engaged in a business affecting interstate commerce and was an employer employing 

employees. Answer, p. 1, ¶ III. The record supports this admission.

18 Engine lathes are man-powered where a tool head (turret) is cranked in and out. (Tr. 53-54). 
- 5 - 

 The CNC lathes and CNC mills are used to tool (or machine) blank plastic workpieces into 

finished parts by means of a spindle that rotates at speeds from 250-1,200 revolutions per minute (rpm). 

The primary difference between a CNC lathe and CNC mill is the position of the workpiece during 

production. In a CNC lathe, the blank workpiece is attached to a spindle, which rotates, as a tool is 

applied to produce the finished part. In a CNC mill, the tool is attached to a rotating spindle and the blank 

workpiece remains stationary on the table during the machining process. (Tr. 62, 67-68, 222, 298; Ex. 

15). 

The CNC Lathes

The five lathes produced finished parts through either a hand-loading or a rod-loading process. 

For a rod-loaded job, multiple finished parts are produced from a 6-foot section of blank workpieces 

loaded into the CNC lathe. The CNC lathe automatically feeds each individual workpiece through the 

tooling process until all the workpieces have been machined, at which point the machine “shuts off.”19 A 

rod-loaded job can take three to four hours to complete, allowing an operator to run more than one 

machine at a time. For a hand-loaded job, operators place their hands inside the machines and load each 

blank workpiece to be manufactured onto the spindle of the lathe. After the cycle is complete, operators

again place their hands inside the machines to remove each finished part. (Tr. 73, 214, 311, 441-42, 437). 

Along the front of each CNC lathe, a “splash guard” door20 moved on a track from left to right to 

either enclose the machine’s moving parts or be open to provide access to the point of operation where the 

workpiece was loaded. The splash guards could be closed and when closed serve as a barrier between the 

operators and the point of operation. Lathe ##7, 19, 37 and 38 each have a window through which an 

operator can observe the progress of the machining operation, without being exposed to the lathes’ 

moving parts when the splash guard door is closed. (Tr. 278; Exs. 17-18, 21-26). 

19 Employees do not reach into the machines to insert blank workpieces or remove parts in a rod-fed operation. (Tr. 

311).

20 This device was referred to as a “splash guard,” “door,” “guard,” or “oil guard” and in this decision these terms 

are used interchangeably.
- 6 - 

Each CNC lathe’s control panel was above the splash guard door. When the splash guard door 

was open, the opening into the CNC lathe was about 17 inches wide and the height was roughly the 

distance from an employee’s hip to shoulder. The splash guard door had a window area to allow a view 

into the machine with the door closed. (Tr. 81, 272, 276, 278, 280; Exs. 17, 19-23, 25-26). 

Each CNC lathe was manufactured with an interlock device; however, none of the interlocks 

were functional when Dover purchased the machines.21 An interlock is an “electronic safety device” 

within the meaning of the cited standard. A functional interlock would not allow the machine to run the 

production cycle with an open splash guard door. A label22 on lathe #7 indicated it had a LS-26 splash 

guard interlock system, but the mechanism was broken and nonfunctional. The splash guard door on 

lathe #7 did not easily move on its track. CO Marcinko observed an employee attempting to open the 

door on lathe #7 by using two hands and then jerking the door up and down to get it to move along its

track. (Tr. 87, 269-73, 332, 345-46; Exs. 17-18). 

Instead of plastic or glass, lathe #15’s splash guard door had a fabricated guard over the missing 

window area that consisted of approximately six vertical bars with several inches of space between each 

bar. The “window” opening was 12 inches from top to bottom. Lathe #15’s fabricated guard would not

prevent an employee from reaching into the point of operation through the gaps between the metal bars 

while the machine was running. The bars would also not prevent items from coming out of the machine. 

The interlock mechanism on lathe #15 was held back by a wire making the interlock not functional. 

Lathe #15 could not be operated by rod feeding. (Tr. 74, 273-76; Exs. 15,19-20). 

21 The parties do not dispute the interlocks were not functioning at the time of the OSHA inspection. (R. Br., p. 4). 22 The photograph shows the label as “LS-26 SPLASH GUA INTERLOC”; the outer right edge of the label was 

missing. (Tr. 271-72; Exs. 17-18).
- 7 - 

Lathe #19 had signs indicating there were two interlock devices, LS-26 and LS-27;23 the 

interlocks were not functional. CO Marcinko observed lathe #19 in operation with its door open. (Tr. 

276-79; Ex. 21). 

Lathe #37 did not have a splash guard door. It was missing when Dover purchased the machine. 

Instead, a large piece of cardboard was used to cover the open area of the CNC lathe to keep debris chips 

or oil used for production from coming out of the machine onto the floor. CO Marcinko photographed a 

warning sign on lathe #37 and testified that similar signs appeared on most of the other machines. The 

sign had the word DANGER across the top and included the warning, “Do Not Open Oil Guard Safety 

Door While Machine is in Operation.” The warning sign also listed eight specific items to do “BEFORE 

STARTING MACHINE CYCLE,” including “Splashguard must be in closed position and engaged in 

interlock system” and “Do not attempt to put your hand in beyond oil guard, while machine is in 

operation.” (Tr. 171, 279-81; Exs. 23-24). 

CO Marcinko observed lathe #38 in operation and saw that when the door was opened during 

operation it did not stop, so the interlock was not functional. The plastic in the window of lathe #38’s 

door was so aged, dirty, and distorted an operator could not see through it to check the progress of the 

production cycle. CO Marcinko observed its operator, Matthew Bitikofer, open the door a few inches so 

he could see the production cycle. (Tr. 282-84; Exs. 25-26). 

The CNC Mills

CNC mills at Dover are used to profile (reshape or tool) or drill holes into a blank plastic 

workpiece. Both CNC mill machines had a sliding splash guard door that could be shut and latched. 

23 The photograph shows the labels as “LS-26 SPLASH GUARD INTERLOCK” and “LS-27 SPLASH GUARD 

INTERLOCK”. (Ex. 21).
- 8 - 

Neither mill #510 nor mill #810 were manufactured with an interlock system. Both CNC mills had a

warning sign above the spindle area that read: 

WARNING

The CNC unit may suddenly run Table, Spindle head, or Spindle rotation. 

DO NOT open door unless machine control is in manual mode and Spindle stop is depressed. 

The warning sign also had a depiction of fingers being amputated when too close to a spinning tool and a 

warning symbol, consisting of an exclamation point inside a triangle, that preceded the word 

“WARNING.” (Tr. 223-25, 284-88; Exs. 27, 29-30). 

Relevant Testimony 

Jeffrey Stingel

Jeffrey Stingel has been the vice-president of manufacturing at Dover since the company’s 

formation in 1990. His duties include purchasing, receiving, sales, operations, and safety. Mr. Stingel 

received no training on occupational safety or machine guarding at Dover. Mr. Stingel stated that Dover 

no longer had a safety officer and that safety was everyone’s responsibility. (Tr. 46-47, 57, 105, 463). 

Mr. Stingel had 20 years of experience operating lathes. In the 1980s, he attended lathe training 

provided by the manufacturer, Miyano. Mr. Stingel had operated Dover’s CNC lathes and mills.24 He 

had operated both a lathe and a mill as recently as a year and one-half ago. (Tr. 56-58). 

Mr. Stingel testified Dover’s screw machines were guarded with sliding doors. Its presses were 

also guarded with electric eyes, also referred to as light curtains. These machine guards did not impede 

the production of the screw machines or presses. (Tr. 50, 52-53).

24 Mr. Stingel has never operated a lathe or a mill on metal parts. (Tr. 473).
- 9 - 

After watching a video in the courtroom of Matthew Bitikofer operating a CNC lathe 

demonstrating a hand-loaded job, Mr. Stingel testified that there was nothing between the operator and 

the CNC lathe’s point of operation shown in the video. He said Matthew Bitikofer was shown standing 

before an open door about two feet away from the point of operation.25 Mr. Stingel testified that he 

measured the distance himself. He testified that the CNC lathe automatically stops after the piece is done. 

After reaching into the point of operation work area and removing the finished piece, the operator 

replaces it with a new piece by again reaching into the point of operation work area. Mr. Stingel testified 

the operator then turns the CNC lathe back on manually. Mr. Stingel also said that the operator can press 

a red button on the CNC lathe to stop it for any reason. He stated that the door on the CNC lathe served 

as a splash guard. The door was open in the video and remained open during the production cycle.

26 Mr. 

Stingel testified that Dover did not require operators to keep the splash guards closed during operation. 

He said that it was an option. (Tr. 64-65, 70, 74-75, 125; Ex. C).

Mr. Stingel was also shown a video of the front and rear view operation of a CNC mill. This too 

was a hand-loaded job. He testified that the video showed an operator first putting a part on an arbor and 

then capping the part so that the part stays on. He said the table then moves away from the operator and a 

drill comes down and drills a little hole in the part. The table then moves back toward the operator, who 

then manually indexes (turns) the part, and hits a button that moves the table back under the drill where 

the process is repeated and another hole is drilled. Mr. Stingel testified there were also splash guard

doors for the CNC mills. These splash guard doors were not always closed during operation. It was the 

operator’s choice to close the splash guard doors. Mr. Stingel testified that mill operator George Bitikofer 

measured a distance of about 32 to 36 inches separating the front of the door of a mill and the point of 

25 Mr. Stingel also testified that the photograph of Matthew Bitikofer at Ex. 26 showed him standing at the splash 

guard/door about two feet from the point of operation. (Tr. 89-90; Ex. 26). 

26 Mr. Stingel testified that the splash guard on lathe #7 would not be closed during hand-loaded job operations. He 

said it would sometimes be closed during rod jobs. 
- 10 - 

operation.27 He also testified that “[i]t could be about a foot” from where the table moves and the mill’s 

door. (Tr. 66-69, 74-76, 125; Ex. D). 

Mr. Stingel testified that the CNC lathes had interlocks that were not being used at Dover. He

explained that an interlock device would stop the machine’s operation when the access door was opened. 

Mr. Stingel knew the interlocks on the lathes at Dover were not “active” and did not work.28 He said “I 

never felt it was necessary to have them [interlocks] work.” He explained that Dover had not disabled the 

interlocks on the CNC lathes; the lathes were purchased in used condition and the interlocks were not 

functional when bought. He also testified that he was unaware of machines that continued to operate after 

interlock alarms sounded. The two CNC mill machines also arrived at Dover without any interlock 

devices. (Tr. 85-88, 100, 117, 122, 126; Ex. 11, p 1). 

Mr. Stingel testified that he had not read the CNC lathe operating manual at Dover in its entirety, 

which was 500 or so pages in length. He acknowledged that the CNC lathe operating manual contained 

the following material:

27 Mr. Stingel testified that he and George Bitikofer made their measurements between the splash guard/doors and 

points of operation in the CNC lathes and mills because Mr. Stingel thought there was a rule that operators had to be 

two feet away from moving parts. (Tr. 125).

28 Mr. Stingel testified:

Q. Okay. Are the interlocks active on any of the CNC lathes?

A. No.

(Tr. 86).
- 11 - 

(Tr. 101-03, 292-94; Ex. 7, p. 6). 

The manual’s upper warning also had a depiction of a person pulling open the splash guard/door

being struck in the head by a round object. The manual’s lower warning had a warning symbol consisting 
- 12 - 

of a triangle sign with an exclamation point inside that preceded the word “WARNING.” Mr. Stingel 

testified that he read these warnings as requiring the splash guards/doors be shut only when there was 

“stuff that’s going to be flying around in there [inside the area that would be enclosed if the doors were 

shut] or splashing material.” He did not believe the warnings required the doors to be shut to protect 

against moving parts. He confirmed that it was Dover’s practice to operate the CNC mills and CNC 

lathes with the splash guard doors open. He knew Dover’s CNC lathes and CNC mills were regularly 

being operated without the splash guard doors being closed. He believed that, because Dover 

manufactured plastic parts instead of metal parts, the warnings to keep the splash guard doors closed did 

not apply.29 He also felt the warning to close the splash guard doors did not apply because in his 40 years 

in the business he had never seen anything come out and hurt anyone. Mr. Stingel admitted that he made 

the “ultimate decision” that it was acceptable to run the machines with the splash/guard doors open. 

Dover had never required its operators to keep the splash guard doors closed during a production cycle. 

Mr. Stingel said operators sometimes watched the point of operation during the production cycle while 

the splash guard door was partially open to insure that “the chips are lapping up.”30 He stated operators 

needed to occasionally look inside of the machines to observe progress being made on the part. (Tr. 75, 

88-89, 98-103, 105, 113, 465, 473; Exs. 7, at p. 6, 26). 

Mr. Stingel stated Dover had a general rule that no one was to reach past the door opening of 

CNC lathes while a workpiece was being tooled. He said it was a hazard for employees to do so for both 

CNC lathes and CNC mills. Mr. Stingel testified Matthew Bitikofer trained employees on CNC lathe 

operations and instructed them to keep their hands out of the machine. They were told to use the stop 

button before putting their hands in the machine to make an adjustment. He stated Dover had a 

29 He testified that his understanding, originating from someone called “Bro” at Miyano, was splash guards were 

intended to prevent coolant, oil and other materials from splashing out of the machine. He said Miyano “taught us 

with the doors opened” in Chicago in the late 1980’s. He assumed “Bro” knew there were warnings on Miyano’s 

machines to the contrary. He could not say whether anyone else told him splash guards were only intended to 

prevent coolant, oil, and other materials from splashing out of the machine in the past 25 years. (Tr. 473-76).

30 Dover’s CNC lathes had vacuum hoses to help collect chips and debris inside the machines. (Tr. 439-42; Ex. C). 
- 13 - 

disciplinary policy for employees that did not follow the rule; however, no one had ever been disciplined. 

(Tr. 71, 82, 94-95). 

Mr. Stingel admitted he had seen someone put their hands beyond the open door, within two feet 

of the point of operation, during the operation of a CNC lathe. Mr. Stingel testified Darren Mullet cut and 

injured his finger on a CNC lathe on October 3, 2012 during its production cycle.

31 His injury was treated 

with one stitch. Mr. Stingel was his supervisor. At that time, the CNC lathes were programmed to tool 

the workpiece and then pause for a programmed period of time. During the pause, the operator unloaded

the finished part and loaded the next blank workpiece to be tooled. The machine began tooling the next 

workpiece based on its programmed timing. Mr. Mullet was injured when he attempted to straighten a 

workpiece on the spindle, at the point of operation beyond the splash door, and the machine started the 

tooling process while his hand was still at the point of operation. 32 He said Mr. Mullet violated a Dover 

work rule by reaching his hand into the machine while it was still cycling. Mr. Stingel did not know why 

the work rule had been insufficient to protect operators from the hazard. Mr. Stingel testified he verbally 

warned Mr. Mullet not to reach back into the point of operation once a part was inserted in the spindle 

even though he “really wasn’t doing anything at that point wrong.” Mr. Stingel stated that on October 3, 

2012 it was acceptable for a Dover operator to put their hand in the point of operation. He admitted that 

had the splash guard been closed Mr. Mullet would not have been exposed to injury. He further agreed

there was no potential for operators to put their hand into the point of operation when the splash 

guard/door was closed. He also agreed the machine would stop if the interlocks were active and an 

operator opened the door. (Tr. 71-72, 76-78, 90-94, 476-77; Ex. 3). 

Mr. Stingel stated that he was familiar with three other reported CNC lathe-related injuries at 

Dover. In April 2012, Mr. Mullet cut himself on lathe #15 with an X-ACTO knife used to deburr a chip 

on a workpiece. His injury did not occur during the production cycle. In March 2013, Francisco Partillo 

31 Dover’s Accident Report stated that a tool cut into the back of Mr. Mullet’s hand. (Ex. 3).

32 Dover’s Accident Report stated Mr. Mullet “[d]idn’t get hand out of machine in time while fixing a crooked part.” 

(Tr. 77; Ex. 3).
- 14 - 

cut his hand on a part within a machine that was on, but not cycling, when he was cleaning out chips. He 

also testified that Chris McCoy sustained a minor injury when he reached into a machine that was “off” to 

clean off some chips. When removing his hand from inside the machine, Chris McCoy cut it on a sharp 

tool inside the machine. (Tr. 127-33, 468). 

Mr. Stingel testified that one of the CNC lathes [lathe #37] displayed a splash guard label that 

stated:

DANGER

Do Not attempt to change, alter or modify the software or mechanism of the machine.

Any unauthorized change or modification of the software or mechanism will be cause for voiding 

the manufacturer’s warranties and liability, for any injury or damage claim resulting from such 

activities.

Do Not Open Oil Guard Safety Door While Machine is in Operation.

BEFORE STARTING MACHINE CYCLE ... 

 4) Splash guard must be in closed position and engaged in interlock system. ... 

8) Do not attempt to put your hand in beyond oil guard, while machine is in operation.

(emphasis in bold added) 

Mr. Stingel admitted he had read the warning sign. He testified that he discounted its reference to 

an “Oil Guard.”33 He further testified the CNC warning sign had been on the lathe since Dover bought 

the used CNC lathe more than ten years before. (Tr. 96, 100; Ex. 24).

 

33 At first, Mr. Stingel testified he did not know what an oil guard was and that it was not referring to the splash 

guard. Later, he testified that: “The term oil guard, I’m not sure if that means the same as a splash guard or not, I 

really don’t know.” Finally he said: “I would have thought it meant splash guard.” Based upon his demeanor in 

the courtroom, the Court views Mr. Stingel’s testimony to be somewhat evasive on this point. The Court finds Mr. 

Stingel had interpreted the label’s use of “oil guard” as synonymous to “splash guard.” (Tr. 97, 465, 483).
- 15 - 

Mr. Stingel also admitted that he had seen the warning sign on a CNC mill at Dover that stated 

the following:

WARNING

The CNC Unit may suddenly run

Table, Spindle head, or Spindle rotation.

DO NOT open door unless machine 

control is in manual mode and

Spindle stop button is depressed.

The warning sign also had a depiction of fingers being amputated when too close to a spinning tool and a 

triangle sign with an exclamation point inside that preceded the word “WARNING.” 

Mr. Stingel admitted he understood the warning sign to mean “don’t open up the door if it’s [the CNC 

mill] running.” He testified that Dover operators did not heed the warning and kept the doors open when 

the CNC mills were running; just as seen on the video at Exhibit D. (Tr. 99-101; Exs. 30, D). 

After Mr. Mullet’s 2012 accident, Dover changed the lathe’s programming so that the tooling 

process begins only after the operator manually hits the start button; it no longer had a pre-timed 

automatic start. Mr. Stingel testified that Dover did not consider requiring the use of active interlocks on 

the machines after Mr. Mullet’s accident because he “never felt there was a safety reason for it.” He 

testified that since the programming change he had not seen anybody reach into the area of the point of 

operation while a CNC lathe was running. Mr. Stingel stated this change in procedure resulted in a faster 

overall production rate. He also testified that Dover had talked about requiring splash guards/doors to be 

closed at all times during production; but that practice was never “put into place.” (Tr. 76, 91, 94, 105-

06, 465). 

Mr. Stingel admitted opening and closing the splash guard door for each cycle could increase the

production time of hand-loaded jobs. For a workpiece with a 5 minute production cycle there would be 
- 16 - 

little effect; however, if the production cycle for a workpiece was only 10 seconds long, the additional 5-

10 seconds spent to open and close the door for each cycle would have a noticeable effect on overall 

production time.34 (Tr. 105-06, 120). 

On May 29, 2014, Mr. Stingel gave the COs a signed witness statement consisting of two pages.35 

In summary, Mr. Stingel’s written statement stated “The guards should always be put on.” Mr. Stingel

testified that he was referring to “everything in that plant,” including “the CNC lathes.” At the trial, he 

clarified this broad-sweeping statement by saying he did not require splash guards on CNC lathes. He 

also clarified his written statement by testifying Dover did not require “front door” guards on the CNC 

mills.36 Mr. Stingel’s written statement further stated: “I tell employees to close the doors.” At trial, 

Mr. Stingel testified that he was referring to only those rare instances, that occur maybe once or twice a 

year, where a job is run with coolant. He said:

I tell those guys on the CNCs, when they’re running coolant, I always tell them to close the doors, 

although I don’t have to because that’s like running through the carwash with your window down. 

There’s nobody going to have those doors open with that coolant flying out. I don’t want it on 

the floor. They don’t want it on their clothes. And we don’t want to have a mess to clean up, or a 

possible safety problem.37(Tr. 109-12; Ex. 11, p. 1).

34 Mr. Stingel testified that a portion of the written statement from his interview with the COs was incorrect. In 

particular, he felt the statement’s notation that he said “If the guards are always being used, it slows production 

down by 50%” did not accurately reflect what he actually told the COs. He testified when asked by the COs would 

production slow down if Dover closed the doors, he initially told the COs “if you add a step to any operation it has 

the possibility of slowing it down.” He also testified he told the COs in a 5 or 6 minute mill cycle closing the door 

would have no effect on production, but “if you’ve got something where one of those tools is just coming in and 

hitting it and they’re out of there in 10 seconds, and it takes you that to close the door, I don’t know, 50 percent.” 

(Tr. 107-08, 120-21; Ex. 11). 

35 The statement: “I have read and had the opportunity to correct this statement and these facts are true and correct 

to the best of my knowledge and belief. Public Law 91-596, Paragraph 17(g) makes it a criminal offense to 

knowingly make a false statement or misrepresentation in this statement[.]” appears above Mr. Stingel’s signature 

on both pages. Mr. Stingel testified he signed his statement “under protest” after being told by the COs to sign it. 

He testified he told the COs he “didn’t agree with it [his statement].” (Tr. 107-08; Ex. 11). 

36 At trial, Mr. Stingel testified:

Q. So why would you say the guards should always be put on?

A. I didn’t say that. It’s every machine. It’s a general statement. Guards should always be put on the machines if 

they are guards.”

(Tr. 110; Ex. 11, p. 1).

37 The Court finds Mr. Stingel’s explanation clarifying at trial what he meant in his May 29, 2014 written statement 

when he said that he told employees to close the doors to be incredulous. The Court finds that Mr. Stingel was not 

truthful when he said in his written statement that he told employees to close the doors. This was an attempt by 
- 17 - 

In both his written statement and courtroom testimony, Mr. Stingel admitted at the time of the 

OSHA inspection lathe #37 had “a piece of cardboard where the splash guard would be.” His written 

statement further explained that “Machine #37 has not had a guard for 10 years because it did not come 

with one.”38 He acknowledged that a splash guard has since been installed. In both his written statement 

and courtroom testimony, Mr. Stingel admitted, at the time of the OSHA inspection, lathe #7 had a 

damaged roller door since it was purchased in the 1980’s. He testified that “the bearings are all wobbly.” 

He said that the door was “hard to open and close.” In his written statement he admitted that the 

machine’s operator “may not use this door every single time, ....” In both his written statement and 

courtroom testimony, Mr. Stingel admitted “sometimes interlocks are broken” and one interlock was tied 

back with wire. (Tr. 114-16, 122-23; Exs. 11, 23). 

Mr. Stingel stated that operators were paid a straight hourly rate and not paid based on production 

numbers, so there was no financial incentive to keep the splash guard doors open to speed up the process. 

He also said he never saw employees bumping into each other in the machine shop. He also testified he 

never heard of a tool or part breaking within a machine and either staying within, or flying out of, the 

machine. He also testified he did not know it was an OSHA violation to run CNC lathes with the splash 

guard doors open. He did not believe it was a hazard to do so. (Tr. 106, 470-72, 484). 

Mr. Stingel was Dover’s vice president of manufacturing in 2008. He agreed Dover told OSHA 

in its January, 2008 Certificate of Abatement that operators were told to use all supplied machine guards. 

He did not recall Dover employees being informed that guards must remain on the machine while in 

operation. (Tr. 487-88; Ex. 6).

Dover management to mislead OSHA’s COs and evade responsibility for allowing employees to regularly operate 

CNC lathes and CNC mills with the splash guards/doors open.

38 At trial, Mr. Stingel contradicted his prior written statement when he testified employees used cardboard to cover 

the opening “until they got the door re-retrofitted. Because the door wasn’t sliding.” The Court finds employees 

used cardboard not because the door was not sliding. Instead, they used cardboard as a substitute because the splash 

guard door was missing from lathe #37. (Tr. 114-15; Exs. 11, p. 1, 23).
- 18 - 

Mr. Stingel acknowledged there was a time when machine operators reached into machines, 

while the machines were running, to grab parts off the machine. He stated “[b]ut the first part off the 

machine sometimes it just wouldn’t face off right, they would reach in and they would grab it [the 

part].”39 Mr. Stingel further testified that this practice was eventually changed and the parts “now fall 

onto the wire” and the operator can “pull the parts out” from inside the machine after the cycle is 

complete.40 (Tr. 466-67, 477-80). 

Matthew M. Bitikofer

Matthew Bitikofer has worked as a machinist at Dover for 22 years. He was the senior lathe 

operator and wrote the programming for the CNC machines. He operated the CNC lathes, primarily 

lathes ##37 and 38. He has never had any specific training on machine guarding. He said he “very 

rarely” kept the doors closed on the two CNC lathes he operated. On May 29, 2014, he told OSHA COs 

“[w]e are told now to keep the doors closed.” (Tr. 206-10, 435-36; Ex. 10).

Matthew Bitikofer ran both hand and rod-loaded operations. Most of the jobs he ran were rodloaded jobs.

41 Dover tries to keep all of the rod-loaded jobs on his two CNC lathe machines. The handloaded jobs were generally assigned to newer employees. The production cycle for a rod-loaded job 

could last 3-4 hours. He just needs to check the machine every hour. The machine automatically stops 

when the rod is depleted. He could operate two or three machines at a time when running a rod-loaded 

job. His two CNC lathes are side by side so he can watch them both. (Tr. 206, 209, 213-14, 436-37, 

449).

Matthew Bitikofer usually ran a job with the splash guard doors open, depending on what job was 

in the machine, because he liked to watch the production cycle.42 However, he stated it was not necessary 

39 Mr. Stingel stated this “rarely happened.” (Tr. 466). 

40 The Court is unable to conclude when this change occurred. 41 He also referred to rod-loaded jobs as “bar fed” jobs. (Tr. 209-10). 42 Matthew Bitikofer testified he did not perceive being exposed to a hazard when doing so because he really did not 

have to do anything other than just watch the parts drop into a pan. (Tr. 438).
- 19 - 

to watch the production cycle for a rod-fed job. He closed the splash guard door to keep coolant from 

spraying on him and if a job could get oil on the floor.

43 Lathe #37 was missing its splash guard door, so 

he created a splash guard made of cardboard to cover the opening.44 He used a splash guard made out of 

cardboard whenever a job required it. In one instance, he cut a hole in the cardboard and put tape over the 

hole so that he could actually see into the machine; but the cardboard got saturated with oil. He admitted 

it was Dover’s work practice to leave the splash guard doors open during production.

45 On May 29, 2014, 

he told OSHA’s COs that interlocks on the machine and guarding would slow down all production by 20

percent. At the hearing, he testified that it would slow production on certain hand-loaded jobs if the 

splash guard door was closed while producing each finished part. (Tr. 206-07, 210-16, 438; Exs. 10, 23). 

On April 4, 2014, Matthew Bitikofer told CO Marcinko he only recalled that one CNC machine, 

lathe #15, had interlocks on it. He further told CO Marcinko the interlock on lathe #15 had been “tied” 

more than 10 years before. He also stated that the interlocks worked, but were impeding Dover’s 

operation. (Ex. 15). 

For a hand-loaded job, the production cycle for a finished part could range from 30 seconds to 2 

minutes. The operator watched the progress of the workpiece to determine when it was finished. He 

believed the operator developed a rhythm for the production cycle’s timing to unload the finished part and 

load the next blank workpiece. He testified that he had concerns operating CNC lathes with the splash 

guard closed would affect production during hand-loaded jobs. (Tr. 209, 216, 436-37, 452). 

Matthew Bitikofer is shown operating lathe #19 in a video demonstrating a hand-loaded job.

46 

He is seen inserting a circular plastic workpiece onto the spindle opening four separate times.47 After 

43 Oil that drips from air lines can get all over the floor and make it slippery. (Tr. 213). 44 Matthew Bitikofer told CO Marcinko on April 4, 2014 that lathe #37 had been at Dover for about 10 years, and it 

never had a splash guard door on it. (Ex. 15).

45 He testified that there was no work rule that required employees to operate CNC lathes with the doors closed. “It 

is undisputed that Dover did not require that its operators close the doors of the cited machines while they were in 

operation.” (Tr. 207; R. Br., p. 4).

46 The video of lathe #19 is less than about 2 minutes in duration. (Ex. C).

47 The video shows Matthew Bitikofer finishing a ball seed part eventually to be used as a valve in a pump. (Tr. 

444).
- 20 - 

inserting each workpiece, he quickly presses the green “CYCLE START” button located above the LS-26 

Splash Guard Interlock label above the left side of the machine opening.

48 He is shown doing so four 

separate times. The spindle holding the workpiece starts rotating and the tool is shown moving to the 

workpiece to machine the workpiece at the point of operation. The tool then moves away from the point 

of operation and the turret turns to put a different tool in position to further machine the workpiece. The 

tool again moves to the point of operation to modify the workpiece and when finished returns to the home 

position. The machining of each workpiece shown in the video takes less than 20 seconds. The spindle 

holding the machined part usually stops rotating about a second and one-half after the tooling sequence is 

finished.

49 Matthew Bitikofer testified he could see when the spindle stopped when he could read the 

writing on the “set screw.” (Tr. 442-43, 452; Exs. 1, 2, C).

Matthew Bitikofer is seen in the video removing three workpieces that had been separately 

machined from the spindle inside lathe #19. On at least two occasions, he is also shown reaching inside 

lathe #19 after a workpiece had been machined to use his fingers to clear some of the plastic debris caught 

in, on or around the spindle and its opening. He stated “you need to get your finger in there and make 

sure everything goes up to the chip sucker. Because if it gets plugged, then they just start packing up.”50 

The video also shows Matthew Bitikofer, during a machining cycle, holding another workpiece to be 

placed into the spindle in his left hand while his right arm is shown resting on the top of the opening of 

48 Matthew Bitikofer is not shown at any time in the video pressing either lathe #19’s “Power On” or “Power off” 

buttons located to the far left of the green “CYCLE START” button. In its post-hearing brief, Respondent asserts 

lathes remain under power in hand-fed operations; but are “at rest” while blanks are hand loaded into the lathe. 

(Exs. 2, C; R. Br., pp. 2-4). 

49 Matthew Bitikofer testified:

Q. [Extraneous material omitted] When that tooling stops at the end of its cycle, what effect does it have on the 

spindle spinning?

A. They usually stop. When the tools back out, the spindle stops. Because the last line the program reads is the

spindle stop, which, I don’t know, maybe a second and a half at the most it takes to stop. I mean it’s pretty quick.

(Tr. 442).

50 Matthew Bitikofer testified operators may need to interrupt an ongoing job to clear out debris chips and stringy or 

rubberish material from inside of the machines. He stated “some of these materials are a real pain in the a**.” He 

testified this is done when the machine has stopped cycling. (Tr. 453-54). 
- 21 - 

lathe #19. He testified at that time his hand was a “couple of inches” from being inside lathe #19. (Tr. 

441-42, 450; Exs. 2, C).

The CNC lathes were equipped with an air nozzle and hose positioned to help blow the debris 

chips away from the point of operation into the vacuum hose just below. If debris chips needed to be 

cleaned out during the machining cycle, Matthew Bitikofer testified he “takes the continuous buttons off”

shutting down the machine, cleans the chips out, and then restarts the machine by “hit[ting] the 

continuous and hit[ting] the green button.”51 (Tr. 438-41; Ex. 2). 

Matthew Bitikofer trained new employees on the operation of the CNC lathes. He told the 

operators that he trained the main safety rule was to “[k]eep your hands out of the machine when it’s 

running.” He stated it took five to seven years before he could operate lathes independently.52 (Tr. 207-

08, 435-36, 448, 460).

Matthew Bitikofer testified there was no reason for an employee to put his hand into the machine 

during a production cycle.53 He told the employees he trained that the machine could not tell the 

difference between a piece of plastic and a finger. He testified that if operators put their hand in a running 

machine, “chances are you’re going to lose it.” (Tr. 214-15, 436). 

In the last five years, he had not seen anyone put their hand in the machine during a production 

cycle. The only accident he knew of was Mr. Mullet’s in October, 2012. At that time, the CNC lathe’s 

program ran a “continuous cycle” that included a pre-programmed pause for the operator to unload the 

finished part and then load the next blank workpiece. At the time, Mr. Mullet was a “tender” and had 

51 The Court finds that the video of lathe #19 more accurately depicts how and when: 1) chips and debris are 

removed from the spindle by the operator reaching into the lathe with his fingers and 2) the green CYCLE START 

button is hit by the operator to start the machining cycle of a workpiece. The video does not show Matthew 

Bitikofer hitting any button to cut the power to the machine before cleaning chips or debris out. The Court finds 

lathe #19’s power remained on throughout the video. (Exs. 2, C). 

52 He testified that one of the current employees was still learning lathe operations after about 7 years, which is 

longer than most of the employees he trained. (Tr. 448, 459).

53 Many years ago the operators put their hands in to “catch” the finished parts for some jobs. A wire catcher is now 

used for that type of job. (Tr. 211-12, 444-46, 477-80). 
- 22 - 

only worked at Dover for 2 years. Matthew Bitikofer explained that a tender does not set-up a machine; 

he “babysits” it while it is cycling. He admitted that an operator could not put his hand into a running 

machine if the splash guard door was closed and interlocked because once an operator opened the door 

the interlock would stop the machine’s cycle. (Tr. 208, 214-16, 448, 456). 

After Mr. Mullet’s accident, Matthew Bitikofer modified the CNC lathe’s programming so that 

an operator had to manually start the production cycle for each workpiece. There were no longer

“continuous cycle” jobs at Dover. He somewhat recalled Dover having some problems with splash 

guards or interlocks in an OSHA inspection that preceded OSHA’s 2014 inspection. (Tr. 210-11, 214, 

455). 

Matthew Bitikofer had never seen an operator bump into another while operating a machine. He 

stated there was no dress code at Dover and machine operators could wear long sleeve shirts. He testified 

he knew of no event when clothing was caught in the equipment. (Tr. 437-38, 461-62). 

George Bitikofer

George Bitikofer54 has worked at Dover for 25 years.

55 He has been in the plastics manufacturing 

industry since 1966. He operated Dover’s two CNC mill machines, ##510 and 810, and makes secondary 

tooling. CNC mills typically perform drilling operations and part profiles.56 He had not received any 

safety training at Dover. He learned the operation of CNC mill machines by reading the programming 

manual, which he said did not include information about safety and machine guarding. (Tr. 220-23, 234, 

247). 

When the splash guard door was open, the CNC mill machine had a large doorway opening that 

allowed the operator to load and unload the workpieces being machined. The machine’s controls were to 

54 George is the uncle of Matthew Bitikofer. (Tr. 179). 55 He had also been an original owner; he is no longer an owner or partner. Mary Lynn Schwab now owns Dover. 

(Tr. 220, 482). 

56 Part profiling shapes parts to whatever is required. (Tr. 223-24). 
- 23 - 

the right of the opening. George Bitikofer generally did not shut the splash guard door during production. 

Occasionally, he shut the door to keep the debris created during the production cycle or coolant from 

coming out onto the floor and causing a hazard there. He estimated that it took about 5-10 seconds to

open and close the door for each cycle.57 He testified, depending on the part being made, the machine’s 

operating cycle can be a couple seconds or a couple minutes. (Tr. 227-30, 240-45; Exs. 1, 13, D).

George Bitikofer is the operator shown in the video demonstrating a hand-fed production cycle on 

mill #810.

58 Just inside the doorway opening is a table that moves horizontally from the front of the 

machine (near the opened doorway) to the back of the machine (where the blank workpiece is tooled).59 

When the table is near the opened access door for loading and workpiece positioning it is in its “home” 

position. The video shows George Bitikofer loading a blank workpiece60 onto a “fixture” (also referred to 

as an arbor) that holds it in place on the table. The workpiece does not move during the production 

process. On the video, George Bitikofer presses the start button and the table moves horizontally away 

from the door and toward the back to position the workpiece below the spindle that holds the rotating drill 

bit (or other machining tool). The drill bit moves vertically down to drill a hole in the blank workpiece. 

After the hole is drilled, the tool moves vertically up to its resting position and the table moves to its 

home position. George Bitikofer then repositioned and rotated the workpiece 180 degrees by reaching 

into the CNC mill machine through the opened doors so another hole can be drilled and repeats the 

process. (Tr. 223-26, 346; Exs. 1, D). 

George Bitikofer testified that while the workpiece is being tooled, an air hose inside the mill, 

near the tool, removes the powder and debris produced. Occasionally, while standing at the open 

57 On May 29, 2014, George Bitikofer told OSHA COs “[i]nterlocks would slow down production on the mill. It 

takes longer on certain parts to open and close the doors than to complete the parts.” (Ex. 13). 

58 The video shows a “Mill Rear View Operation” just over 1 and 1/2 minutes in duration and a “Mill Front View 

Operation” less than 2 minutes long. The video is dated October 27, 2014.

59 The CNC mill door opening is high and wide. The door opening is as tall as the operator and begins above the 

operator’s knees, but below his waist. It appears to be wide enough for two operators to stand alongside each other 

before it. (Exs. 1, D).

60 The blank workpiece is the piece of material; e.g., plastic, before it has been modified on a CNC lathe or CNC 

mill. 
- 24 - 

doorway, George Bitikofer used a second air hose that hangs to the right of the access door to blow away 

excess debris chips during the production cycle.61 He testified that he did not lean into the CNC mill 

machines to remove these chips. Chips and debris also accumulated in a tray that was removed and

emptied when the CNC mill machine was shut down. (Tr. 230-33). 

George Bitikofer measured the distance from the doorway opening to the spindle at 32 inches on 

both CNC mill machines. He stated that someone could lean into the CNC mill machine itself to get his 

hand or arm under the spindle. He testified he had not done so during a production cycle. George 

Bitikofer had also never seen anyone put their hand under the spindle of a CNC mill at Dover. He did not 

know the precise distance between the edge of the table, in its home position, and the machine’s 

opening.

62 (Tr. 226-27, 234-36, 239). 

George Bitikofer testified that a warning was posted on one of the CNC mill machines that stated 

“Do not open door unless machine control is in manual mode and spindle stop button is depressed.” He 

admitted that he did not heed the warning when operating the two CNC mill machines. He opened the 

door when the CNC machine was not in the manual mode. He also left the doors open while the spindle 

was operating. He further admitted that an operator could reach inside a mill machine to the spindle if the 

doors were open; but could not if the doors were closed. (Tr. 240-42; Ex. 30). 

Paul Palmer

61 George Bitikofer described the chips as “Teflon nylon chips” that were debris generated from the machining of a 

finished part. The chips may also be referred to as “shavings.” (Tr. 228; Ex. E).

62 He testified that the distance from the table’s edge, in its home position, to the opening was less than 32 inches. 

He also testified that a vice mounted to the table was also less than 32 inches from the opening when the table was in 

its home position. The video at Ex. D shows that the table’s edge and the vice, in the table’s home position, are very 

near the opening; much less than 32 inches. CO Marcinko testified the table came almost to the edge of the CNC 

mill machine. Mr. Stingel estimated the table came within a foot of the door. (Tr. 66-69, 235-39, 343; Ex. D). 
- 25 - 

Paul Palmer has been Dover’s vice president of sales and marketing since 1990. He accompanied 

CO Marcinko during his “walk-around” of the facility on April 4, 2014. Mr. Palmer had no experience as 

a lathe or mill operator. However, he had observed mills and lathes operate. (Tr. 55-56, 144-45, 155). 

In a written statement that he signed and gave to the COs on May 29, 2014, Mr. Palmer stated: 

“Using these machines with guards adds to cost and time.” He also stated “[s]ome parts need to be 

grabbed before they drop.”63 He further stated that, although the CNC “machines were originally 

designed to default back to ‘zero’ after every piece, they could now “be stopped and started back up 

without going back to ‘zero.’”64 He stated “I would guess that using the doors reduces production 

25%.”65 He also stated that Dover fabricated [splash] guards for the screw machines after OSHA’s 2008 

inspection.66 At trial, Mr. Palmer did not dispute making these statements. (Tr. 148, 153-54; Ex. 12). 

The Court finds the explanations Mr. Palmer gave at trial in an attempt to undermine his May 29, 

2014 written statement to lack credibility. 

Brian Bitikofer

Brian Bitikofer has worked at Dover for 23 years. Several of his family members worked at 

Dover: George Bitikofer is his father, Matthew Bitikofer is his cousin, and his son, Cole, also worked at 

Dover. During the first 2 years, he operated lathes. He then became Dover’s Midwest sales manager and 

for the past two years was also responsible for new business development. He said he accompanied CO 

Marcinko during his April 4, 2014 inspection. (Tr. 164-66, 179). 

Brian Bitikofer testified the CNC lathes at Dover were “sometimes” operated with their splash 

guards open. The last time he operated a CNC lathe was about 5 years before, to fill in for a sick 

63 Mr. Palmer testified at trial that he had just “assumed” operators were grabbing parts “a long time ago” to stop 

them from being dinged and rejected. He admitted operators had to have guard doors open to allow them to quickly 

grab parts inside the machine with their hands before parts fell to the ground. He further admitted operators could 

not grab the parts inside the machines at all if the guard doors were closed. (Tr. 150, 156-57, 160-161). 

64 At trial, Mr. Palmer testified he was trying to show how “very intelligent” the operators were. (Tr. 152). 

65 Mr. Palmer testified at trial that the statement was “just a wild guess.” (Tr. 153, 157).

66 At trial, Mr. Palmer testified that was an assumption on his part. (Tr. 153).
- 26 - 

employee. When he was a CNC lathe operator he generally had the splash guard door open. He stated 

that it had been many years since it had been a practice for an operator to put his hands in the machine 

during a cycle. (Tr. 165, 178). 

On May 29, 2014, he signed a written witness statement during OSHA’s second visit to Dover.67 

He asserted that Dover bought all of its machines in used condition in both his written statement and 

during his hearing testimony. He also testified he had seen a CNC machine [lathe #37] with cardboard on 

it a few times over the years, and never with a [splash guard] door. In both his written statement and 

during his hearing testimony, he stated that he made sure Dover made a door for lathe #37 within two 

days of the OSHA inspection. He testified that the machines’ “interlocks are not functioning.”68 He 

agreed during his testimony that “[u]sing the interlocks will kill production 25-50% and would hurt 

competition.”69 At the trial his testified that he was referring to “hand load parts” and not to other 

unidentified product that would not be affected.70 (Tr. 166, 170-73, 176; Ex. 16). 

In both his written statement and hearing testimony, he acknowledged the cage screen on the one 

CNC machine [lathe #15] was an area where an employee could still put a hand or arm through the guard 

while the machine was running.71 (Tr. 173-75; Exs. 16, 19-20). 

Brian Bitikofer testified the assertion in his written statement that “[p]rograms are now created to 

still function in alarm” was an error. He testified “Programs aren’t wrote specifically to bypass safety.” 

He said an “alarm” was an event that immediately stops the machine in its production cycle. For 

example, a machine could go into alarm mode and stop if: a) the machine turret “over travels,” b)

67 The witness statement included the following above his signature:

I have read and had the opportunity to correct this statement and these facts are true and correct to the best of my 

knowledge and belief. Public Law 91-595, Paragraph 17(g) makes it a criminal offense to knowingly make a false 

statement or misrepresentation in this statement.

(Ex. 16).

68 He pointed out an interlock device on CNC lathe No. 15, at “B”. (Tr. 180-81; Ex. 19). 

69 This was consistent with the assertion made in his written statement. (Ex. 16).

70 Brian Bitikofer testified that he felt pressured to come up with a quantifiable number. (Tr. 178; Ex. 16). 

71 Although this was so, Brian Bitikofer stated he had not seen it happen during his years of employment at Dover. 

(Tr. 173-75; Ex. 16). 
- 27 - 

hydraulic oil pressure was low, or c) the operator hit the red emergency master stop button.72 (Tr. 173, 

181-83).

Seth McCoy

Seth McCoy has worked for Dover for seven years. He is a CNC Machinist and operated lathe 

#7.73 He learned to operate the lathe from Matthew Bitikofer.74 Mr. McCoy testified that he and other 

lathe operators at Dover “sometimes” operated the lathe with the splash guard door open. On May 29, 

2014, Mr. McCoy asserted in a written statement to OSHA’s CO: “Honestly, ‘I only close the door when 

it is convenient.’” He further asserted in the written statement: “I have heard of employees reaching into 

the machine while it is running and getting hurt.”75 Mr. McCoy testified that an operator could get his 

hand caught in a moving part if he reached an arm’s length, about two feet, into the machine, and this 

could be a hazard were he to do so. He closed the door if debris chips were flying out of the machine.76 

He testified that Mr. Stingel has told him to keep the splash guard door closed. He said Dover had a rule 

to keep the splash guard door closed as long as he worked there.77 He also testified that the “DANGER” 

sign shown at exhibit 24 was posted on a machine at Dover. (Tr. 184-88, 193-96; Exs. 14, 24). 

He witnessed Mr. Mullet’s lathe injury that occurred at Dover on October 3, 2012. Mr. Mullet 

had reached into a running lathe to adjust a workpiece on the spindle, when the tool moved and cut the 

back of his hand. After the Mullet accident, Mr. McCoy testified that Dover was more firm about 

72 He pointed out a Master alarm red button on lathe #15, at “C”. (Tr. 181; Ex. 19).

73 In his written statement to the OSHA COs dated May 29, 2014, Mr. McCoy described lathe #7 as “the machine 

with damaged rollers for door.” (Ex. 14).

74 He testified that Matthew Bitikofer had not talked about putting hands within the confines of the machine while it 

was running with “moving parts” during his training. (Tr. 195). 75 Seth McCoy testified that his brother Chris McCoy, a CNC operator, sustained a small cut reaching into a lathe 

that had its power on to clear out a chip. The Court credits Seth McCoy’s testimony that the lathe’s power was on 

over Mr. Stingel’s testimony that it was his [Mr. Stingel’s] understanding the “machine was off.” (Tr. 191-92, 199-

200, 468). 

76 Seth McCoy testified that the chips he was referring to were similar to those at Exhibit I. (Tr. 195-96; Ex. I). 77 He testified that Dover had never disciplined anyone for operating a CNC lathe with the door open. His testimony 

was consistent with his May 29, 2014 written statement where he stated: “I do not know anyone who has been 

disciplined for running machines without closing the doors.” (Tr. 187; Ex. 14). 
- 28 - 

shutting the doors and operators took control of the start of the production cycle. (Tr. 188-90, 197; Ex. 

3). 

Mr. McCoy testified that, during his May 29, 2014 interview, he felt the COs had threatened him

with jail if he did not tell the truth.

78 He said the COs threatened him after he initially told them he 

always operated his lathe with the splash guard door closed.

79 Mr. McCoy admitted that he had lied 

during the May 29, 2014 interview when he told the COs he closed the CNC lathe’s door for each 

production cycle.

80 (Tr. 201-04; Ex. 14). 

CO Matthew Marcinko

Matthew Marcinko has been an OSHA CO for 3 1⁄2 years. He is a member of an OSHA response 

team that responds to fatalities, accidents, and complaints. He received a bachelor’s degree in 

occupational safety and health from Columbia Southern University (CSU) in 2008. He earned a master’s 

degree in occupational safety and health from CSU in 2013.81 He has completed OSHA’s training for 

safety and machine guarding.

82 He has conducted prior inspections of facilities with mills and lathes, 

including the inspection of CNC type machines. (Tr. 249, 256-57). 

78 The witness statement that he signed included above his signature the following: “I have read and had the 

opportunity to correct this statement and these facts are true and correct to the best of my knowledge and belief. 

Public Law 91-596, Paragraph 17(g) makes it a criminal offense to knowingly make a false statement or 

misrepresentation in this statement.” (Ex. 14).

79 Lathe #7, which Mr. McCoy operated, is the lathe where CO Marcinko observed an employee having significant 

trouble moving the splash guard door. (Tr. 269-71).

80 From the transcript of Mr. McCoy’s testimony:

Q. And on line 5 there's a sentence that starts halfway on the line. It says: I am always using the door and closing it 

while that machine is running. Do you see that? 

A. Yeah.

Q. Was that accurate?

A. No.

Q. That wasn't true?

A. No. That was when they threatened me.” (Tr. 204).

81 CO Marcinko testified that CSU was an online, nationally accredited university. (Tr. 304-05).

82 From about 2007 through 2011, CO Marcinko worked as a civilian employee with the United States Army’s 

Corps of Engineers (COE). While there, he was a tools and parts attendant, maintenance mechanic, and a safety 

officer. He worked in the construction, maritime, manufacturing and general industries while at the COE. He 

received some general machine guarding and safety training while working there. He occasionally assisted 

machinists operating mills and lathes, that were not CNC, at the COE. He also served a total of seven years on 
- 29 - 

He began Dover’s inspection on April 4, 2014, after OSHA received a complaint regarding safety 

problems at Dover. The complaint alleged that CNC machines were operated with guard doors open, 

guards were not on the screw machines, the light curtains on the presses were non-functional, eye 

protection was not being used, and exits were improper. (Tr. 258). 

CO Marcinko visited the Dover facility two times, April 4, 2014 and May 29, 2014. He began 

the first visit by conducting an opening conference with Mr. Palmer.83 He reviewed the issues in the 

complaint that had prompted the inspection and then conducted a walk-around inspection of the facility. 

He interviewed Messrs. Palmer and Matthew Bitikofer on this visit. He observed the layout of the CNC 

lathes and the operation of four CNC lathes.

84 He immediately observed the splash guards were open on 

all four of the CNC lathes that employees were operating.85 He was concerned about the open splash 

guard doors. He also investigated the safety issues related to the screw machines, presses, exit doors, and 

eye protection. He spent a total of 3-4 hours at Dover that day; 30-45 minutes of that time was spent on 

the production floor. (Tr. 258-65). 

CO Marcinko testified that during one of his inspections at Dover he took a photograph of lathe 

#7 showing a label and base (also referred to as the interlock block where a swing arm would normally be 

attached) for an interlock; but the rest of the interlock was missing.86 He testified that an interlock was a 

device that provides guarding by “protecting the operator from going into the point of operation or any 

moving parts. Once that door is open, it stops the machine automatically and is considered a safe zone 

now for an employee to, you know, grab anything out, whatever they need to do inside that piece of 

active duty in the US Army from about 1998 through 2001, and 2002 through 2006. He also worked as a forklift 

operator at Northwest Pipe Company, for six months in about 2001, where he received machine guard training. (Tr. 

249-256). 

83 CO Marcinko stated there was another employee at the opening conference. On direct examination, the CO 

identified the second person as Mike Poland. On cross-examination, he identified the person as Brian Bitikofer, but 

then stated he was unsure of the second person’s name. The Court notes Brian Bitikofer testified he accompanied 

CO Marcinko during the April 4, 2014 inspection. (Tr. 259-60, 166, 307-08). 

84 He testified that Dover had five CNC lathes in one room. (Tr. 261).

85 He testified that these CNC lathes included lathe ##7, 19 and 38. (Tr. 262).

86 CO Marcinko testified that “LS-26 splash [guard] interlock” appeared on the label. (Tr. 271; Exs. 17-18). 
- 30 - 

equipment.”87 CO Marcinko testified that the interlock device was not functional on lathe #7. (Tr. 270-

73, 285; Exs. 17-18). 

On his May 29 visit, he held a second opening conference with Mr. Stingel. On this visit, he was 

accompanied by another CO he was mentoring, Jeff Bobo. CO Marcinko conducted interviews with 

several Dover employees and CO Bobo took notes. At the end of each interview, the COs asked the 

employees to sign a written statement. On May 29, 2014, CO Marcinko took a photograph of lathe #15 

that shows “where the interlock was located that had the wire holding the interlock back.” He testified 

“there’s a swing arm there [at “B” on the photograph at exhibit 19] that had the tie wire around it holding 

it back.” He testified that the interlock device on lathe #15 was not functional because it “had been 

defeated with the tie wire.” CO Marcinko testified he personally saw the tie wire and identified the tie 

wire holding the interlock back on the photograph at exhibit 20, at “A”. On this visit, COs Marcinko and 

Bobo also measured a fabricated guard on the outside of the door of lathe #15. There were openings in 

the fabricated door guard. He also testified that he and CO Bobo measured the distance from the opening 

in lathe #19 to the point of operation.88 They also measured the width of the opening with the door in the 

open position at about 17 inches that he had observed in operation. CO Marcinko also took a photograph 

of lathe #19 that showed two placards that stated “LS-26 Splash Guard Interlock” and “LS-27 Splash 

Guard Interlock.” He testified that the interlock device on CNC lathe #19 was not functional. CO 

Marcinko also testified that he took the photograph at Exhibit 23 that showed the splash guard made of 

cardboard on lathe #37.89 He also took the photograph at exhibit 24 that showed the danger label that was 

on the majority, if not all, of the CNC machines. He testified that item no. 8 on the danger label on lathe 

87 The machine manual states:

19.2 Door interlock

 The door interlock switch is located on the door of the control box. When the door interlock switch is ON, if tried 

to open the door, the machine power goes OFF automatically. The door interlock switch has keys, called the door 

interlock keys, to turn the switch ON/OFF. 

(Ex. 7, p. 8). 88 CO Marcinko testified that he saw that CNC lathe operators were within arm’s reach of the point of operation. 

(Tr. 314-15).

89 CO Marcinko testified he took the photograph showing the cardboard on April 4, 2014. He believed the 

cardboard has been replaced with a sliding door by May 29, 2014. (Tr. 334-35). 
- 31 - 

#37 warned operators not to “attempt to put your hand in beyond oil guard, while machine is in 

operation.”90 (Tr. 265-66, 273-80, 307; Exs. 19, at “B”, 20-24). 

CO Marcinko also testified that he took the photograph at exhibit 25 of lathe #38. He testified the 

photograph showed the absence of an interlocking device.91 The absence of a functioning interlock 

device was confirmed when he observed that lathe #38 did not turn off when the splash guard door was 

opened and closed while the lathe was operating. Either he or CO Bobo also took a photograph of 

Matthew Bitikofer looking inside lathe #38 as it was operating with the splash guard door partially open. 

(Tr. 282-84; Exs. 25-26). 

CO Marcinko also testified that he took the photograph at exhibit 27 of mill # 510. He testified 

the photograph showed a latching mechanism to secure the door. He testified there was no interlock 

device on the doors of mill #510. CO Marcinko further testified that he took the photograph at exhibit 29 

of mill #810. He testified that there was no interlock device on the doors of mill #810. CO Marcinko 

testified that employees are still exposed to a moving parts hazard if the CNC mill splash guard doors are 

open even in rod-fed CNC mill jobs where operators are not required to put their hands into the machines 

repeatedly. (Tr. 285-87, 311, 345-46; Exs. 27, 29). 

CO Marcinko held a total of three closing conferences to apprise Dover of his findings; one each 

at the first and second visits and another prior to issuing the citation. He testified he based the citation on 

the hazard from moving parts and not of flying parts or objects. (Tr. 318, 320, 342-43). 

CO Marcinko described the layout of the production area as a box-shaped formation where each 

machine’s door faced the interior of the box area and the operators stood facing away from each other 

looking toward each machine. He believed there was a risk of the operators accidentally bumping into 

90 CO Marcinko testified that “oil guard” was the same as “splash guard.” (Tr. 280-81).

91 CO Marcinko testified that the two CNC mill machines were not manufactured with interlocks. He further 

testified that after 2001 ANSI required interlocks be placed on CNC milling machines as moveable doors. He said 

ANSI was not incorporated into the OSHA standard, but were considered nationally recognized consensus 

standards. He testified that this was a requirement ANSI imposed on the employer. (Tr. 355-56). 
- 32 - 

each other because they faced away from each other and it was “such a tight area.” He observed 

operators working at lathes ##7 and 19 in close proximity of each other and thought they could bump into 

each other. During his inspections, he observed the CNC lathes operating making small washers. He saw 

operators putting their hands in and out of the machines about every 20 seconds. (Tr. 261-62, 295, 299, 

338-39).

CO Marcinko also observed lathe #38 running a rod-loaded job with the splash guard door open. 

He believed its operator, Matthew Bitikofer, was exposed to the hazard of moving parts during the 

production cycle. CO Marcinko testified Dover was cited for the potential of an amputation hazard 

resulting from moving parts of the machines. He said a hand caught in between the moving table and the 

edge of a CNC mill machine could cause a fracture to the hand or a finger amputation. (Tr. 311-12, 320, 

344). 

He also believed Matthew Bitikofer could have been exposed to the machine’s point of operation 

when he saw him use an air wand to clean off the workpiece during the production cycle. (Tr. 311-12). 

CO Marcinko was concerned that during certain production cycles the tooling could move at such 

a slow rate of speed as to appear to be at rest. He was concerned employees might not be able to readily 

tell when the spindle was spinning. When repetitively loading 300 to 600 identical parts per day, the 

operator could assume the cycle was finished and inadvertently reach his or her hand in and make contact 

with the point of operation with a spindle rotating at 250 to 1,200 rpms. (Tr. 299, 337-38). 

CO Marcinko was told there was no safety policy on clothing or jewelry worn by operators. He

believed clothing, e.g., long sleeve shirts or hooded sweatshirts, could get caught on a moving part and 

pulled into the machine when an operator reached up to use the CNC lathe’s control panel located above 

the guard door opening. He also testified operators performing rod-fed operations were exposed to a 

rotating part hazard when the splash guard doors were open. He testified that employee exposure existed 

where it was possible for an employee to get his hand into the moving parts of a machine. He testified the 
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phrase “electronic safety devices” in the cited standard, 29 C.F.R. § 1910.212, includes interlocks. (Tr. 

295-97, 311, 316, 332, 345-46; Exs. 1-2; JPHS Fact #10).

On the CNC mills, CO Marcinko testified there was also a hazard if an employee’s hand was 

caught between the moving table and the machine’s front wall. (Tr. 343). 

CO Marcinko testified that he conducted the employee interviews at Dover according to his 

normal procedure where, before an employee signs a statement either the employee reads the statement or 

CO Marcinko reads it aloud, the employee can make any changes the employee wants to make. He did 

not coerce or threaten employees during his interviews.92 After his interviews with managers and 

employees, he had the impression that it would significantly affect production speed if the splash guard 

doors were closed for every production cycle. (Tr. 266-67, 361).

CO Marcinko recalled being told Dover changed its procedures to require operators “to manually 

hit the start button in order to start the operation” following Mr. Mullet’s injury. He said that change in a 

work practice rule was not the best way to eliminate exposure to the hazard. He stated that the best way 

to prevent hazard exposure altogether was by using an engineer control measure, such as guarding. He 

described a “hierarchy of controls” of best practices starting with engineer control measures, 

92 He did warn Seth McCoy to tell the truth. Seth McCoy had told him during the interview that he shut the splash 

guard door on lathe #7 “every single time” for every production cycle. CO Marcinko believed it was unlikely that 

Mr. McCoy closed the splash guard door numerous times a day given how difficult it was to close the door on lathe 

#7 because it had bad rollers on the bottom of the sliding door. CO Marcinko read section 17(g) of the Act to Seth

McCoy to advise him of the consequences of providing false information. Seth McCoy then became defensive. 

Section 17(g) of the Act states:

(g) Whoever knowingly makes any false statement, representation, or certification in any application, 

record, report, plan or other document filed or required to be maintained pursuant to this Act shall, upon 

conviction, be punished by a fine of not more $10,000, or by imprisonment for not more than six months, 

or by both. 

The Court finds the COs did not threaten or coerce Seth McCoy during his May 29, 2014 interview. Seth McCoy 

admitted during his testimony that he had initially lied to the COs during the inspection interview. CO Marcinko’s 

testimony as to how he conducts interviews was consistent and credible. (Tr. 267-71; Exs. 14, 17). 
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administrative control measures, Personal Protective Equipment (PPE), and ending with work practices

[rules]. (Tr. 359-60). 

CO Marcinko testified Dover was previously cited by OSHA for point of operation and nip point 

hazards under 29 C.F.R. § 1910.212(a)(1)93 and (3)(ii) on CNC milling and Brown and Sharpe screw 

machines at the same plant location.

94 He further testified the prior citation was resolved by an informal 

settlement agreement dated January 2, 2008 where Dover agreed to abate the violations. He also testified 

that Dover provided a written certification dated January 10, 2008 that certified corrective action had been 

completed.95 (Tr. 289-91; Exs. 5-6). 

CO Marcinko testified that he considered the citation to be willful because Dover had a 

heightened awareness of the standards and hazards at issue from the 2012 Mullet injury, previous citation

violations, doors being left wide open, and lack of effort to prevent employees from reaching into the 

machines to the point of operation.96 He said OSHA did not give Dover any credit for good faith since 

the violation was classified as willful. (Tr. 301-02). 

James Washam

The Secretary presented James Washam as an expert on machine guarding issues. The Secretary 

asserted Mr. Washam’s testimony would show that it was reasonably predictable for an operator to place 

his hand in the zone of danger during a machine’s production cycle. (S. Br. 32). 

93 The citation stated:

29 C.F.R. 1910.212(a)(1): Machine guarding was not provided to protect operator(s) and other employees from 

hazard(s) created by moving parts of the CNC Milling Machine. (Ex. 5, p. 9).

94 Exhibit 5 shows the citation for these violations was issued by OSHA on December 20, 2007. 

95 The Certification stated:

Correction completed

Additional machine guards were taken out of storage and placed on the machine. Employees were informed that 

the guards must remain on machine while in operation.

(Ex. 6, pp. 1-2).

96 CO Marcinko testified that management representatives; including Messrs. Stingel, Palmer and Brian Bitikofer, 

told him using interlocks and keeping the doors closed would reduce production by 25 to 50 percent. (Tr. 361). 
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Mr. Washam has over 50 years of experience in machine guarding safety. He started his career 

operating mills and lathes. From 1979 through 2007, he worked for OSHA in several capacities, 

including compliance officer, Assistant Area Director, and Region 5’s machine guarding lockout 

coordinator. Thereafter, he consulted and provided training to OSHA’s Training Institute and major 

corporations, including Siemens Corporation and Merrick, for three years. In 2010, he resumed working 

at OSHA as Region 5’s machine guarding lockout coordinator on a part-time basis, three days each week. 

Mr. Washam has developed and presented training about machine guarding safety for employees, training 

centers, and associations during his career. Additionally, Mr. Washam participated in the ANSI 

committee for an industry consensus standard on machine guarding. He has been an expert witness in six 

OSHA cases, including three machine guarding cases and three machine lockout cases. (Tr. 371-85). 

The Court found Mr. Washam qualified as an expert in machine guarding based on his 

knowledge, skill, experience, training and education over the course of 50 years. Respondent had no 

issue with Mr. Washam’s qualifications regarding the technical aspects of how to guard a machine or 

whether the guards are adequate. He testified this case involved whether or not the: a) machines were 

guarded and b) employees were exposed. (Tr. 388, 395). 

 

Mr. Washam prepared a written expert report dated February 10, 2015. Mr. Washam’s 

expert opinion was based on OSHA’s file,97 his experience observing CNC mills and CNC 

lathes, his knowledge, related ANSI industry standards, applicable OSHA standards, accident 

reports, and testimony at the hearing. (Tr. 389-99, 416, 420). 

Mr. Washam stated he was generally familiar with the types of CNC mills and CNC lathes used 

at Dover’s facility and had previously observed them in operation. After watching the videos of Dover’s 

97 The OSHA file included photographs, OSHA-1B’s/worksheets, the CO’s notes, witness statements, and Dover’s 

videos of its CNC lathe and CNC mill in operation. (Tr. 389, 416). 
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CNC mill and CNC lathe, he determined Dover’s use and operation was not unique. (Tr. 388-89, 399; 

Exs. 1-2). 

Mr. Washam stated the hazards presented by the lack of guarding on the CNC mills and CNC 

lathes at Dover included those from moving tables that may create pinch points, contact with moving 

parts, tooling and other parts being run, tooling breakage, and parts or tools flying out of machine. 

Entanglement of hair, jewelry, or clothing in moving parts also presented a hazard.98 Mr. Washam stated 

amputations could occur from entanglements, contact with rotating parts, and/or pinch points created by 

moving tables. He testified that the hazards at Dover were recognized by the ANSI standards. (Tr. 399-

403, 414-15, 427). 

Mr. Washam stated the zone of danger for the CNC mills and CNC lathes was the area within the 

confines of the machine’s walls, including the wall formed when the moveable splash guard door was 

closed. He opined there was no operational necessity for an employee to be in the zone of danger 

(confines of the machine) when the machines were running during the machine’s production cycle. But, 

Mr. Washam testified that there was a need for employees to be in the zone of danger at other times. He 

stated that employees were “not protected” from the zone of danger. He explained “there is nothing to 

prevent employees from doing any of these tasks that they would do when the machine is not running or 

at least not in motion, there’s nothing to prevent them from doing the same types of tasks when the 

machine is operating or moving.” He testified that “[t]he problem is that there is nothing to prevent them 

from [extraneous words omitted] not paying full attention to the operation and performing some of those 

tasks when the machine is actually in operation. So there’s nothing to prevent them from getting into the 

actual hazardous motion of the machine while the machine is in operation, other than a work rule.”99 In 

his opinion, once an employee passed “the opening of the door opening [the employee] would be into the 

98 ANSI B11.23-2002 states that guards shall “[p]revent the accidental entry of clothing or body parts into the hazard 

area(s) that it is guarding.” Likewise, ANSI B11.22-2002 states that guards shall “[p]revent the accidental entry of 

clothing or body parts into the hazard area(s) that it is guarding.” (Exs. 8, p. 38, 9, p. 43). 

99 Mr. Washam testified he has investigated many accidents over the years involving some intentional actions by 

employees taking shortcuts. (Tr. 405).
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danger zone.” He opined that there would be an operational necessity to go beyond the door opening to: 

1) catch a part before it dropped into a pan to avoid nick or scuffs marks and/or 2) hit a start button right 

above the doors because the operators were “right in front of the door” and there was the potential for 

tools breaking or parts flying out of the machine. (Tr. 399, 403-06; JPHS Fact #8). 

Mr. Washam further testified there was a need for an employee to be in the zone of danger at 

other times, such as, when loading a workpiece.

100 Mr. Washam believed it was reasonably predictable 

an employee would be in the zone of danger during a production cycle, to adjust an air nozzle or a coolant 

hose, when using an air wand, or cleaning out debris, because there was no guard to keep an operator 

away from moving parts.101 Further, Dover’s standard practice had operators standing next to the open 

doors during a production cycle. Mr. Washam believed an employee near the open door could 

inadvertently enter the zone of danger because of loss of attention due to the routine, repetitive nature of 

the work, by attempting to take a shortcut, by making an adjustment, or by misjudging the sequenced 

timing of the machine’s program.102 He also testified when the [CNC mill] table moved back “fairly 

close” to the CNC mill machine opening it appeared to create a “potential pinch point.”103 (Tr. 403-06, 

409-10, 422-23; JPHS Fact #8). 

Mr. Washam opined that Dover’s programming change to the CNC lathe after the 2012 Mullet 

incident, which required the operator to manually start the next cycle rather than use a pre-timed 

automated start, had not eliminated the hazard to employees but lessened the probability of injury. He 

100 Mr. Washam testified similar hazards were present in rod-fed operations because the door guards were not closed 

and tools or parts could fly out of the machine. (Tr. 429). 

101 Mr. Washam testified he was concerned operators would use air lines, nozzles, wands and hoses inside the 

machines to clean parts or blow chips away when the machines were not shut off, but were “at rest” between 

operational cycles. He opined it was “very likely” and “predictable” that another reach-in machine accident would 

occur at Dover even though no incidents occurred for several years. (Tr. 411, 426-27).

102 He testified that Dover’s practice allowing operators to run two machines at a time provided more reason for an 

operator to get out of sequence. He said “One machine is operating and the other one is down, vice versa, and that 

goes on all day. There might be more probability of reaching in to do something thinking the machine is off and it 

really is not.” (Tr. 406-07). 

103 Mr. Washam stated he could not say there actually was a pinch point until he knew the distance from the table’s 

edge to the machine’s wall. (Tr. 343, 423; R. Br., p. 11).
- 38 - 

said Dover could have eliminated the exposure to the hazard by using the existing machine guard doors 

with proper safety interlocks, which would automatically break that safety circuit and actually prevent 

any motion from occurring inside the machine. (Tr. 408). 

Mr. Washam stated that Dover’s employees were not protected while using a machine because 

Dover relied on a general instruction to employees to keep their hands out of the machine. Mr. Washam 

testified a work rule, by itself, offers inadequate protection.104 There was no guard or other barrier to 

prevent an employee from being exposed to the point of operation during a production cycle. A closed 

splash guard door would prevent contact. A functioning interlock on a splash guard door would stop the 

production cycle if the door was opened and prevent accidental contact. (Tr. 404-10). 

Mr. Washam testified 29 C.F.R. § 1910.212 requires employers to guard against machine hazards 

in some manner. He said the standard does not specify a certain type of guard, such as an interlock, to 

use. He stated it was OSHA policy to use an ANSI standard as a guide to determine the proper 

application of safeguards where 29 C.F.R. § 1910.212 does not specify what type of guard must be used. 

Mr. Washam that testified ANSI B11.23-2002 applied to Dover’s two CNC milling machines and ANSI 

B11.22-2002 applied to Dover’s CNC lathes.105 (Tr. 412-13, 417; Exs. 8-9, B, p.2). 

Overall, the Court finds Mr. Washam’s testimony helpful to establish the type of hazards 

resulting from a lack of machine guarding and whether Dover had adequate measures in place. He is a 

credible source of information regarding safety and machine guarding for CNC lathes and CNC mills. 

104 Mr. Washam testified:

Q. And why isn’t a work rule adequate?

A. Because you can’t rely on the work rule to – if you could rely on work rules, then most machines wouldn’t have 

to be guarded. Work rules and training are trying but they don’t prevent somebody from getting into the zone of 

danger during the operating cycle. And the 212 standards that’s been talked about here, they’re talking about guards 

and devices to prevent exposure to the hazard as opposed to a work rule. Or training or whatever it might be. A 

physical device that prevents it. (Tr. 410).

105 The ANSI standards state “American National Standards are promulgated through ANSI for voluntary use.” 

(Exs. 8, p. 2, 9, p. 2).
- 39 - 

Based on his extensive experience in the field of safety and machine guarding, and courtroom demeanor, 

the Court finds his testimony credible and persuasive. 

CITATION

Secretary’s Burden of Proof

To establish a violation of an OSHA standard, the Secretary must show by a preponderance of the 

evidence that: (1) the cited standard applies; (2) the terms of the standard were violated; (3) the employer 

knew, or with the exercise of reasonable diligence could have known, of the violative condition; and (4) 

one or more employees had access to the cited condition. Astra Pharm. Prods., 9 BNA OSHC 2126, 

2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

Citation 1, Item 1

The Secretary cited Dover for a willful violation of 29 C.F.R. § 1910.212(a)(1) which requires:

(a) Machine guarding -- (1) Types of guarding. One or more methods of machine 

guarding shall be provided to protect the operator and other employees in the machine 

area from hazards such as those created by point of operation, ingoing nip points, rotating 

parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, twohand tripping devices, electronic safety devices, etc.

Specifically, the Secretary alleged that Dover did not provide adequate machine guarding to 

protect employees from the hazard of moving parts for seven pieces of equipment – five Miyano CNC 

automatic lathes and two Excell CNC mills.106 For each machine, the citation alleged there was a lack of 

106 Respondent emphasized during the hearing and in its briefs the only hazard at issue was contact with a machine’s 

moving parts. A review of the Secretary’s post-hearing submissions shows the hazard alleged relates only to the 

moving parts on the lathes and mills; the Secretary presented no argument or instance for another hazard (for 

example, the hazard of ejected parts). Because the Secretary did not pursue an argument that Dover violated the 

machine guarding standard for the hazard of objects being ejected outside the machine, the Court will not address 

the arguments Respondent has set forth to refute this possible argument.
- 40 - 

“adequate guarding to protect the employees from the moving parts of the lathe,107 thereby exposing the 

employees to an amputation hazard.”108 The seven cited machines are:

a. Number 7 Miyano Machinery USA CNC automatic lathe, model number BNC-34, 

serial number BN30982L.

b. Number 15 Miyano Machinery USA CNC automatic lathe, model number BNC-34, 

serial number BN30989C.

c. Number 19 Miyano Machinery USA CNC automatic lathe, model number BNC-34, 

serial number BN32101C.

d. Number 37 Miyano Machinery USA CNC automatic lathe, model number BNC-20S, 

serial number BN202765.

e. Number 38 Miyano Machinery USA CNC automatic lathe, model number BNC-34S, 

serial number BD10356.

f. Excell 510 CNC mill, model number XL-510, serial number ES78829.

g. Excell 810 CNC mill, model number XL-810, serial number ES81726.

Respondent admitted the interlocks on the lathes were not functioning and that it did not require 

its operators to close the doors on the CNC mills and CNC lathes during the production cycle. 

Respondent asserts the Secretary cannot prove the prima facie element of exposure to a hazard because its 

operators had no reason to be near the point of operation during a production cycle and the Secretary did 

not show inadvertent contact was reasonably predictable based on how operators used the machines. (R. 

Br. 4, 14-17). 

107 The Court finds the citation’s reference at paragraphs f. and g. relating to the two CNC mill machines to the 

moving parts of the “lathe,” instead of “mills,” as immaterial to the outcome of the case. Neither party raised this as 

an issue. 

108 This violation description was used for each of the seven cited machines. See Complaint and Citation. 
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Applicability and Violation of the Standard

29 C.F.R. § 1910.212(a)(1) requires employers to use one or more methods of machine guarding 

to provide protection to operators and other employees in the machine area from hazards created by, for 

example, point of operation, rotating parts, and flying chips. Examples of guarding methods include 

barrier guards and electronic safety devices, including interlocks. The standard does not specify which 

guarding method shall be used; it just mandates that a guarding method shall be used. Respondent does 

not dispute that the standard is applicable to the seven cited CNC machines and that its employees 

routinely operated the CNC mills and CNC lathes without guarding.109 The Court further finds 

Respondent’s employees routinely operated the CNC mills and CNC lathes without guarding in violation 

of the standard’s requirements. The Court finds that the cited standard applies. (Tr. 412-13, 417). 

Dover asserts the only hazard at issue in the instant case is related to employee exposure to a 

machine’s moving parts and no other hazards. Dover cited Carlyle Compressor v. OSHRC, 683 F.2d 673, 

675 (2nd Cir. 1982) and Sec’y of Labor v. Loren Cook Co., 803 F.3d 935, 941 (8th Cir. 2015) to support 

its assertion that a tool or workpiece ejected from the machine is not covered under the cited standard. 

(R. Br. 5-7, 10; R. Supp. Br. 1-2). 

Loren Cook is not apposite to the instant case. Loren Cook narrowly held that 29 C.F.R. § 

1910.212 (a)(1) did not apply to the hazard of the anomalous ejection of a large 12-pound rotating metal 

workpiece from a lathe that was the basis of the alleged violation by the Secretary.

110 803 F.3d at 937. 

Carlyle held the standard did not cover the hazard of a thrown machine shaft. 683 F.2d at 675. Neither 

case is relevant to the hazard of exposure to moving parts in the instant case. 

109 In its Answer, Respondent asserted the alleged violations resulted from unpreventable employee misconduct and 

the alleged violations occurred more than 6 months prior to the issuance of the citation. Answer at ¶¶ VII, VIII. 

Respondent did not pursue either of these arguments. The Court deems these defenses abandoned. See Ga. Pac. 

Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991).

110 In its Response to Respondent’s Supplement to Post-Hearing Brief, the Secretary asserts that the Loren Cook

holding should not be construed as a blanket determination that 29 C.F.R. § 1910.212(a)(1) does not cover ejecting 

parts. (Sec. Suppl. Post-Hrg. Br., p. 1). 
- 42 - 

Further, neither case is from the likely circuit of appeal for the instant case. See Kerns Bros. Tree 

Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (“Where it is highly probable that a Commission 

decision would be appealed to a particular circuit, the Commission has generally applied the precedent of 

that circuit in deciding the case—even though it may differ from the Commission's precedent”). The 

Court finds these cases are inapposite to the instant case.

Knowledge

The Secretary must prove the employer either knew, or with the exercise of reasonable diligence 

could have known, of the violative condition. Revoli Constr. Co., 19 BNA OSHC 1682, 1684 (No. 00-

0315, 2001). The employer’s knowledge is directed to the physical condition that constitutes a violation. 

Phoenix, 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995), aff’d. 79 F.3d 1146 (5th Cir. 1996). It is 

not necessary to show that the employer knew or understood the condition was hazardous. Id. 

Knowledge is imputed to the employer “through its supervisory employee.” Am. Eng’g & Dev. 

Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012) (citations omitted). Mr. Stingel, vice president of 

manufacturing, admitted it was his decision to allow the employees to routinely operate the lathes and 

mills without use of machine guarding. (Tr. 99-100, 103, 105). 

Here, Dover’s management knew that 29 C.F.R. § 1910.212(a)(1) required CNC lathe and CNC 

mill machines be adequately guarded from hazards created by moving parts.111 The Court finds that 

Dover also knew its employees routinely operated the CNC lathes and CNC mills without guarding. It 

further finds Dover’s management was well aware its employees routinely operated the CNC lathes and 

CNC mills with the splash guard doors open, leaving no barrier between the operators and the point of 

operation, or other moving parts. (Tr. 68-69, 75-76, 98-100, 103, 125, 288-89; Ex. 5, p. 9). 

111 In January, 2008, Dover certified to OSHA that: 1) “[a]dditional machine guards were taken out of storage and 

placed on the [CNC mill] machine[.]” and 2) its employees “were informed that the guards must remain on machine 

while in operation.” (Tr. 289-91; Ex. 6, p. 2). 
- 43 - 

Dover had ample warning that the splash guard doors on both the CNC lathes and CNC mills 

needed to be closed while the machines were operating. Lathe #37 and other machines had warning signs 

that said “DANGER,” “Do Not Open Oil Guard Safety Door While Machine is in Operation.” The 

warning signs also stated “Splashguard must be in closed position and engaged in interlock system” 

before starting the machine cycle. Both CNC mills also had warning signs above the spindle area that 

read “DO NOT open door unless machine control is in manual mode and Spindle stop is depressed.” The 

warning signs also had a depiction of fingers being amputated when too close to a spinning tool and a 

warning symbol consisting of a triangle sign with an exclamation point inside that preceded the word 

“WARNING.” Dover did not heed these warnings and chose to ignore them. (Tr. 99-101, 281, 286-88; 

Exs. 24, 29-30). 

Dover also ignored additional clear warnings in the CNC lathe operating manual 

that said: “Keep splash guards closed while operating machine[.]” and “[t]o protect against MOVING 

PARTS while operating machine: Keep all splash guards, covers, doors, and other protective devices in 

place. If removed, replace before operating.” Another warning had a depiction of a person pulling open 

the splash guard/door being struck in the head by a round object. The manual also included a warning 

that said “FAILURE TO FOLLOW THESE CAN RESULT IN SEVERE INJURY OR DEATH.” (Tr. 

101-03, 292-94; Ex. 7, p. 6).

Exposure

The parties agreed there was no operational necessity for an operator to have his hands in a 

machine during the production cycle. The citation is based on exposure through careless, inadvertent, or 

intentional contact with a machine’s moving parts. An employee would be exposed to a moving parts 

hazard by placing his or her hand within a CNC lathe or CNC mill while the machine is cycling. Lathe 

operators are repeatedly required to put and use their hands at the point of operation inside the machines 

to insert and retrieve parts and remove debris. This is expected to occur at a time when power is flowing 

to the lathes, but the lathes are not engaged in an active cycling manufacturing operation. There is a zone 
- 44 - 

of danger for employees within the confines of the CNC lathes and CNC mills at Dover. (Tr. 399, 405-

06; JPHS Fact #8). 

The Court finds the Secretary has proven it is reasonably predictable for an operator to carelessly, 

inadvertently, or intentionally contact the point of operation during a machine’s production cycle. 

The Commission has long held the definition of the hazard depends on how the machine 

functions and how it is operated. Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 

1997). To establish exposure under the cited standard, “the Secretary . . . must show that it is reasonably 

predictable either by operational necessity or otherwise (including inadvertence), that employees have 

been, are, or will be in the zone of danger.” Id. 

The zone of danger is “that area surrounding the violative condition that presents the danger to 

employees [that] the standard is intended to prevent.” S&G Packaging Co., LLC, 19 BNA OSHC 1503, 

1506 (No. 98-1107, 2001) (citations omitted). Here, the cited standard protects employees from the 

moving parts of a CNC mill or CNC lathe. 

The Secretary asserts the zone of danger is the entire area with the walls of the machine and while 

in the zone of danger an employee can inadvertently contact moving parts. The Secretary’s expert stated 

that the zone of danger was “within the confines of the equipment.” For both CNC mills and CNC lathes, 

the Secretary asserts the point of operation exposes an operator to injury from moving parts. The 

Secretary also asserts the CNC mill’s moving table presents a hazard to the operator. (Tr. 320, 344, 399-

401; S. Br. 24-25). 

The point of operation “is the area on a machine where work is actually performed upon the 

material being processed.” 29 C.F.R. § 1910.212(a)(3)(i). For the lathes, the point of operation is the 

location where the blank plastic workpiece is loaded onto the spindle about 2 feet away from the 

doorway’s threshold. During production, the tool moves to the rotating workpiece to produce the part. 

(JPHS Fact #1). 
- 45 - 

For the mills, the blank workpiece is loaded onto a table near the doorway opening. When the 

production cycle begins, the table moves the blank workpiece toward the point of operation near the back

of the machine, approximately two feet from the door’s threshold. The rotating tool then moves vertically 

down to produce the part. (Tr. 226, 235; JPHS Fact #1; S. Br. 13). 

The Respondent asserts the Secretary’s definition of the zone of danger is too broad and the 

Secretary has not shown that being next to the open doorway presents a danger to an operator. 

Respondent asserts the Secretary’s expert was considering hazards that are not at issue in the instant case. 

Nonetheless, while the Secretary’s allegations in the instant case do not include every hazard that could 

occur from a lack of guarding, the Court finds the Secretary has shown that the machine’s moving parts 

can be accessed from any place within the machine when the splash guard door is open. The zone of 

danger includes the confines of the machine. (R. Br. 7-13). 

The Secretary argues that Dover’s operators are exposed to the zone of danger in two ways. The 

first is when the operator misjudges the timing of the CNC lathe’s cycle and makes contact with the point 

of operation before the spindle stops rotating or a CNC mill operator enters the zone of danger; e.g., to 

remove debris. The second is when an operator stands by the open doorway of the CNC lathes and CNC 

mills during the production cycle. (S. Br. 29, 32).

With respect to the Secretary’s first argument, that an operator could make contact because he 

misjudges the timing of the production cycle, the Court finds it is reasonably predictable a CNC lathe 

operator could carelessly, inadvertently or intentionally contact the point of operation. The Commission 

has long recognized the machine guarding standard is designed to protect employees from human 

mistakes such as distraction, carelessness, and fatigue. B. C. Crocker Cedar Prods., 4 BNA OSHC 1775, 

1777 (No. 4387, 1976). 
- 46 - 

The Court finds the combined factors of the absence of the use of any guarding method, including 

splash guard doors left open112 and nonfunctioning interlocks, the repetitive steps in the workpiece handloading process, the production cycle’s automatic stop, the fast pace of production with operators standing 

alongside the open doors,113 the recurring need to clear out debris from inside the machines by hand and 

air wands, 114 and the significant experience needed to master the lathe’s operation, make it reasonably 

predictable a CNC lathe operator would misjudge the lathe’s timing and make contact with the point of 

operation during a production cycle.115 

Dover knew the interlocks on the five CNC lathes were not functional. Lathe #15’s interlock was 

“tied back” for more than a decade showing a continuing, conscious decision to render its interlock 

useless. Dover also knew the two CNC mills had no interlocks. An interlock is an “electronic safety 

device” within the meaning of the cited standard. A functional interlock would not allow part production 

to occur with an open splash guard door. Because the interlocks on Dover’s CNC lathes did not function

and were missing on its CNC mills, doors could remain open during production and thus not provide a 

physical barrier between the operator and the point of operation. JPHS Fact #6 that states “[i]nterlocks 

are not required under the cited standard” does not absolve Dover from being found to have violated the 

cited standard. Interlocks were an electronic safety device that Dover could have used as a guarding 

method. It chose to not use interlocks, or any other suitable guarding method, as machine guarding to 

protect its employees from the hazard of moving parts. (Tr. 86-87, 275-76, 285-87, 332, 345-46; Exs. 15, 

20). 

112 Aside from just leaving all of the five CNC lathe’s splash guard doors open, lathe #7’s door did not move well on 

its rollers, lathe #15 had vertical bars over its opening where a door should have been, lathe #37 used cardboard as a 

window, and lathe #38’s window was so dirty its operators could not see through it. (Tr. 114-15, 123, 176, 269-71, 

279, 283-84; Exs. 11, 23, 26). 

113 The video at exhibit C shows Matthew Bitikofer resting his hand inches from the inner confines of a lathe. 

Should his hand slide for any reason, it would be within the zone of danger.

114 Respondent does not dispute that operators have occasion to have their hands inside of the machines to clean out 

chips and unplug vacuum hoses while the machines are “at rest,” but powered on. (Tr. 439-42, 453; R. Br. 14-16). 

115 The Secretary also asserted that running multiple machines could cause an operator to misjudge the timing. 

Matthew Bitikofer’s testimony was that he ran multiple machines when he was running rod-loaded jobs that lasted 

several hours per cycle. (Tr. 437; S. Br. 26). 
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The steps of the workpiece hand-loading process for CNC lathes contribute to the likelihood of 

contact with the point of operation. The operator manually controls the start of the cycle, but not its end. 

The operator watches the production process and unloads the finished part when he believes the 

production cycle is finished. The spindle operates at 250 to 1,200 rpm during a production cycle. The 

spindle stops rotating after the tool backs away from the point of operation. When unloading the finished 

part, the operator can misjudge whether the spindle has stopped and make contact with the still rotating 

spindle. (Tr. 442). 

Finally, the fast pace of successive production cycles contributes to the likelihood an employee 

will misjudge the timing and reach into a CNC lathe too soon. The CNC lathe operator unloads the 

finished part and loads the next blank workpiece in rapid succession. The record shows the full 

production cycle for a finished part can be 30 to 120 seconds. In the demonstration video, the production 

time for the finished part was less than 20 seconds. The video also shows that approximately three 

seconds elapse from the unloading of a finished part to the loading of the blank workpiece. This very

rapid pace of production, with just seconds between cycles, done many times per day, makes it reasonably 

predictable an operator could misjudge the timing by a second or two and make contact with the rotating 

spindle.116 This would be especially true for less experienced employees because it can take 6-7 years for 

an employee to master the CNC lathe’s operation. (Tr. 448, 460; Exs. 2, C). 

Mr. Mullet’s 2012 accident demonstrates that misjudging the timing of a production cycle leads 

to injury. Mr. Mullet was injured when the production cycle started while he was adjusting the workpiece

inside a CNC lathe. Just as Mr. Mullet misjudged the timing of the automatic start, an employee could 

misjudge when the production cycle had finished and make contact with the point of operation while the 

spindle was still rotating. Had a guard been in place and used, it would have prevented Mr. Mullet’s 

116 This Court’s finding is consistent with the opinion of the Secretary’s expert, James Washam, a recognized expert 

in machine guarding with impressive experience. Respondent did not present any expert testimony rebutting Mr. 

Washam’s opinion in this regard.
- 48 - 

injury. If interlocks were functioning on his CNC lathe, the interlock would have prevented him from 

even being able to open the splash guard door while the machine was engaged in a cycling operation. 

Finally, a quick production pace was important to Dover. Brian Bitikofer testified that the ability 

to quickly hand-load workpieces gave Dover a competitive advantage. Messrs. Stingel and Matthew 

Bitikofer acknowledged that closing the door for each production cycle could significantly effect 

production time, especially for short-cycle jobs. This focus on the pace of production supports the 

assertion that the fast pace contributes to the likelihood of a mistake.117 (Tr. 105-06, 173, 176-77, 209, 

216; Exs. 13, 16). 

Here, the evidence shows the specific nature of how the CNC lathes and CNC mills are operated 

by Dover’s employees. By their own testimony, and by additional evidence including videos of the actual 

operation of both types of machines, it has been shown that Respondent’s employees who operate CNC 

lathes and CNC mills must necessarily do many of their required tasks either within the confines of the 

machines or immediately adjacent thereto. While they are performing these tasks, the machines are 

repeatedly placed into and taken out of the cycled operation. The production cycle occurs over and over, 

hands in and hands out of the CNC lathes, the machine’s operating cycle turned on and turned off, up to 

600 times each day. It is reasonably predictable that Dover’s employees will not be able to maintain the 

constant vigilance and perfect timing needed to avoid another incident involving contact with moving 

parts. A repeat of Mr. Mullet’s accident is very possible through contact with moving parts an operator 

thought had stopped, but had in fact not stopped. (Ex. 7). 

Secondly, the Secretary asserts that being next to the open door of these CNC machines during 

production also exposes an employee to the zone of danger. Leaving the splash guard doors open while 

the CNC machines are operating is a ready invitation for operators to enter into the zone of danger for 

whatever reason, including accident, carelessness and inadvertence; thereby being exposed to the hazard 

117 If the operator touches the spindle a second too early he is exposed to a spindle rotating at speeds up to 1,200 

rpm. 
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of moving parts. The record shows operators stood by the opening during the production cycle. The 

width of the lathe’s opening was 17 inches and the height was roughly the distance from an employee’s 

hip to shoulder. Operators routinely watched the process to determine if debris was accumulating on the 

workpiece. Further, to use the CNC lathe’s control panel, for example to hit the cycle start button, the 

operator had to reach across the open doorway. CO Marcinko observed an employee using an air wand in 

the CNC lathe’s doorway during a production cycle and an employee with his face next to an open door 

observing the workpiece’s progress. The door opening for the two CNC mill machines was substantial in 

size; large enough for the upper body of an operator to stumble or fall into the zone of danger. (Tr. 282-

83, 311-12, 399, 406; Exs. 21, 26; S. Br. 28). 

Respondent refutes this argument by stating no Dover operator had ever contacted the machine’s 

moving parts while using an air wand or using the control panel. Further, Respondent asserts this is 

analogous to the alleged exposure in Fabricated Metal Prod., 18 BNA OSHC at 1073-75. (R. Br. 12; R. 

Reply 3). In Fabricated, an employee was observed using a hand wand to clean the equipment with 

compressed air 12-14 inches away from the point of operation. Id. at 1073. The Commission found it 

“remote at best” an employee would make contact with the point of operation as the result of a slip and 

fall. Id. at 1074. 

The instant case differs from Fabricated in several ways. In Fabricated, the Commission found 

there was no reasonably predictable exposure to the point of operation from a slip and fall because boxes 

limited direct access to the area, the machine was equipped with a sensor to shut it down if it detected an 

adjustment to the machine, and the opening to the points of operation were small -- between 1/4 inch to 3 

inches. Id. 

The Court finds Fabricated is not analogous to the instant case. At Dover, there was no 

obstruction between the operator and the machine’s moving parts. The machines had no sensor or other 

device to automatically stop the machine. The door openings for both the CNC lathes at CNC mills at 
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Dover were substantially larger. Finally, the point of operation could be reached from anywhere within 

the confines of the machine and not the limited openings of 1/4 inch to 3 inches in Fabricated. 

Further, Dover cannot rely on its belief that employees are safe because there had been no prior 

accident other than Mr. Mullet’s accident. The OSH Act is designed to prevent injury rather than waiting 

for “an employee to die or become injured.” Whirlpool Corp. v. Marshall, 445 U.S. 1, 12 (1980). The 

Commission has held that a hazard is presumed to exist where a standard sets forth a particular method 

for employee safety. See Otis Elevator Co., 24 BNA OSHC 1081, 1085 (No. 09-1278, 2013), aff’d 762 

F.3d 116 (D.C. Cir. 2014). Here, the cited standard requires guarding of a machine’s moving parts to 

prevent an injury. Relying on an employee’s “common sense” or judgment rather than provide a guard is 

not a reasonable means of protection from a machine’s moving parts. H.B. Zachry Co. (Int’l.), 8 BNA 

OSHC 1669, 1674 (No. 76-2617, 1980) (Machine guarding standard requires physical methods of 

guarding rather than methods of guarding that depend on human behavior; unguarded point of operation 

posed a hazard that could result in injury in the event of employee carelessness or inadvertence); see also 

George C. Christopher & Sons, Inc., 10 BNA OSHC 1436, 1444 (No. 76-647, 1982) (Standards require 

guarding be provided by a device that itself prevents the operator from endangering himself; dependence 

upon employee behavior misplaced). 

The Secretary also asserted that an operator could make inadvertent contact with moving parts if 

he stumbled or slipped his or her arm or hand into the opening of a CNC lathe or CNC mill machine. The 

close proximity of the machines with the operators facing away from each other make it predictable 

operators could bump into each other causing an arm or hand to enter into the zone of danger. The door 

openings of both the CNC lathes and CNC mills are large. An operator could lose his balance and fall 

into the zone of danger of an operating CNC mill machine.

Respondent refutes this point by stating this had never occurred and asserts the instant case is 

analogous to Buffets, Inc., 21 BNA OSHC 1065, 1067 (No. 03-2097, 2005). In Buffets the Commission 

found there was no evidence of conditions that a slip and fall was a likelihood. Id. Unlike Buffets, the 
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issue here is not whether there is any substance or obstacle that would cause an operator to slip or fall. 

The hazard in the instant case results from the close proximity of the machines to one another, the 

operators’ difficulty in seeing each other while operating their machines, and the openness of the zone of 

danger when the splash guard doors are not closed. The door opening of a CNC lathe is large enough for 

an employee to insert his arm or hand into the machine after being bumped by another employee. The 

opening was 17 inches wide and the height was roughly the distance from an employee’s hip to shoulder. 

The CNC mill machine’s opening is even larger. When CO Marcinko observed the operation, he saw that 

operators stood close to each other and faced away from each other. As a result, he believed it was 

predictable an operator could accidentally back into another while operating a machine. CO Marcinko’s

testimony was straightforward and convincing. The Court agrees that a long sleeve shirt or hooded 

sweatshirt could get entangled on a moving part. (Tr. 399; Exs. 21, 26; S. Br. 28). 

Respondent also relies on other Commission cases to support its position its operators were not 

exposed to moving parts; e.g., Delek Refining, Ltd., 25 BNA OSHC 1365, 1374 (No. 08-1386, 2015), 

appeal docketed, No. 15-60443 (5th Cir. June 22, 2015); S. D. Beverly Enters., Inc., 21 BNA OSHC 1037, 

1038-39, (Docket No. 01-202, 2005) (consolidated); Miniature Nut & Screw Corp., 17 BNA OSHC 1557, 

1561-63 (No. 93-2535, 1996); Jefferson Smurfit Corp., 15 BNA OSHC 1419, 1421 (No. 89-0553, 1990); 

Syntron, Inc., 11 BNA OSHC 1868, 1869 (No. 81-1491, 1984). 

In Delek, the Commission found that no one worked near or had duties on the machines, there 

was no evidence employees were near the zone of danger, and that being 5-10 feet away was too far for 

inadvertent contact. Delek, 25 BNA OSHC at 1374.

By contrast, Dover’s employees had duties at the machines, they were in and out of the zone of 

danger many times a day, and were routinely at the CNC lathe’s point of operation. The Court finds 

Delek does not support Respondent’s position.
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In Beverly, the Secretary alleged employees were exposed to moving parts as an operational 

necessity. The Commission found there was no operational reason for an employee to have his hands at 

the point of operation and thus there was no exposure. Beverly, 21 BNA OSHC at 1038-39. The 

Commission noted that, unlike here, the Secretary “makes no claim that inadvertent contact with the 

rotating agitator could be made by Beverly’s employees during normal use of the unguarded A-200 

mixer.” Id., at 1038-39. 

Here, the violation is based on accidental, careless, inadvertent or intentional contact with the 

point of operation; as such Beverly does not support Respondent’s position. Neither does Miniature. In 

Miniature, the Commission found there was no violation of 29 C.F.R. § 1910.212(a)(1) because there was 

no employee exposure to an unguarded nip point in a flat die thread roller used about once a week where 

a barrier, the bulk of the machine itself, was between the operator and a small brush an operator might 

reach for while the machine was not running. Miniature, 17 BNA OSHC at 1561-63. The instant case is 

distinguishable from Miniature. Here, the operator stands next to the zone of danger throughout the 

production cycle in order to quickly load a workpiece for the next cycle. Further, the operator is placing 

his hands in and out of CNC lathes at a rapid pace due to short cycle times, and there is no barrier 

between the operator and moving parts. 

In Jefferson, the Commission rejected testimony presented on behalf of the Secretary that 

straight-line gluer118 operators routinely came within 2 to 5 inches of the unguarded nip points. Jefferson, 

15 BNA OSHC at 1421. Instead, the Commission found there was no evidence of an occasion where an 

operator would be closer than 16 inches to the machine’s nip points. Id. at 1421. In contrast, here, it is 

undisputed operators are routinely at the point of operation to load and unload parts within CNC lathes 

118 A “straight-line gluer” processes flat cardboard into finished boxes by passing the cardboard through a series of 

older bars and glue applicators which gradually form it into boxes of the prescribed size and shape. (Jefferson, 15 

BNA OSHC at 1419).
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and clear debris in both CNC lathes and CNC mill machines. Jefferson does not support Respondent’s 

position.

In Syntron, the Commission found there was no violation because the evidence did not show the 

operator would have a reason to come close enough to unguarded portion of a saw blade. Syntron, 11 

BNA OSHC at 1869 (Commissioner Cleary dissenting – Majority taking no account that operator could 

be injured through inadvertence). Here, the operators were routinely at the point of operation of CNC 

lathes. Syntron does not support the Respondent’s position.

The Secretary also proved exposure to the hazard of moving parts for CNC mill operators. While 

a CNC mill operator does not load at the point of operation, the risks are the same for an operator 

standing near the CNC mill’s open doorway. Because there is no barrier between the operator and the 

point of operation, an operator is able to reach into the machine to make adjustments or clear debris at any 

time. Dover cannot rely on an employee’s judgement instead of providing a barrier or other guarding for

protection from moving parts. Further, the CNC mill’s opening is large enough for an operator’s arm, 

hand or upper body part to enter into the zone of danger and make contact with moving parts. (Exs. 1, 28, 

29). 

The Court finds the Secretary has proved that it is reasonably predictable Dover’s CNC lathe and 

CNC mill machine operators are exposed to moving parts due to the specific nature of how the machines 

are operated. The Court further finds the Secretary demonstrated the operators’ practice of standing next 

to the open splash guard doorway during the production cycle makes it reasonably predictable careless, 

accidental, inadvertent, or intentional contact with the moving parts of a CNC lathe and CNC mill would 

occur. Finally, the Court finds the Secretary proved it was reasonably predictable operators were exposed 

to moving parts on the CNC lathes and CNC mills and did not provide the required guarding. The 

Secretary proved his prima facie case for Citation 1, Item 1.

Willful Characterization
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The Secretary classified this violation as willful.119 A willful violation is done “with intentional, 

knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee 

safety.” Burkes Mech., Inc., 21 BNA OSHC 2136, 2140 (No. 04-0475, 

2007) (Burkes) (citations omitted); see also, Nat’l Eng’g & Contracting Co. v. Herman, 181 F.3d 715, 

721 (6th Cir. 1999) (finding conduct is willful if it is “intentional, deliberate, and voluntary”). “The 

Secretary must show that the employer was actually aware, at the time of the violative act, that the act 

was unlawful, or that it possessed a state of mind such that if it were informed of the standard, it would 

not care.” Propellex Corp., 18 BNA OSHC 1677, 1684 (No. 96-0265, 1999) (citations omitted). A 

willful violation differs from a serious violation by a heightened awareness and either conscious disregard 

or plain indifference. Williams Enter., Inc., 13 BNA OSHC 1249, 1256 (No. 85-355, 1987). 

The Commission has repeatedly held that an employer who deliberately disregards known safety 

requirements acts willfully. In Calang Corp., 14 BNA OSHC 1789, 1791 (No. 85-319, 1990), the 

Commission held that the "conscious disregard" of the requirements of the cited standards by an employer 

who had the standards explained to him was willful. In Donovan v. Williams Enters., 744 F.2d 170 (D.C. 

Cir. 1984), the court affirmed a Commission decision that an employer who had failed to heed warnings 

that it was not in compliance with OSHA standards and abate the violations acted willfully. The court 

stated, "These facts alone are sufficient to establish 'intentional disregard of' and 'plain indifference' to 

OSHA's regulations." 744 F.2d at 180, accord Valdak Corp., 17 BNA OSHC 1135, 1137 (No. 93-239, 

1995), aff’d, 73 F.3d 1464 (8th Cir. 1996) (permitting a dangerous condition to exist for a long period of 

time was willful); Morrison-Knudsen Co./Yonkers Contracting, Joint Venture, 16 BNA OSHC 1105, 

119 The Secretary also asserted the violation was serious. (S. Br. 33). A violation is classified as serious under § 

17(k) of the Act if “there is substantial probability that death or serious physical harm could result” if an accident 

occurred. 29 U.S.C. § 666(k); Compass Envtl., Inc., 23 BNA OSHC 1132, 1136 (No. 06-1036, 2010), aff'd, 663 

F.3d 1164 (10th Cir. 2011). The Secretary need only establish any possible accident would most likely result in 

serious injury. Wis. Elec. Power Co., 4 BNA OSHC 1783, 1787, n. 18 (No. 5209, 1976), aff’d. 567 F.2d 735 (7th

Cir. 1977). The Court finds that serious physical harm is the likely result if an employee’s hand is caught in the 

moving part of the machine. The Court finds the Secretary has shown employees are exposed to a serious hazard as 

a result of Dover’s violation of the cited standard. 
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1127 (No. 88-572, 1993) (an employer who knowingly disregarded its consultant's advice acted 

willfully).

The Secretary asserts Dover had a heightened awareness of the need to guard the moving parts of 

CNC lathes and CNC mill machines through an OSHA citation issued December 20, 2007, the abatement 

Dover implemented in response to that citation, Dover's warnings to its employees to keep their hands out 

of the machine, the warning in the CNC lathe’s operating manual, the warning labels on the CNC lathe 

and CNC mill machines, and the 2012 Mullet injury. Respondent asserts none of these are a basis to 

support a willful characterization. Respondent is wrong. In the aggregate here, they provide an ample 

basis to justify a willful characterization. (Tr. 71, 82, 95, 100, 207, 214; Exs. 5, 6; S. Br. 34-38). 

The Secretary asserts the 2007 machine guarding citation, and the subsequent abatement, 

provided Dover with a heightened awareness of the unguarded condition of its machines and the 

standard’s requirement to guard against moving parts. The Court agrees. The 2007 citation included 

violations of two machine guarding standards: 29 C.F.R. § 1910.212(a)(1) and 29 C.F.R. § 

1910.213(a)(3)(ii). Dover’s abatement certification to OSHA stated the machine guards had been 

installed on the machines and employees were instructed to use them during operations. (Ex. 6; S. Br. 34-

35). 

Respondent asserts two reasons why the 2007 citation and abatement did not provide heightened 

awareness: the machines were distinctly different than the instant case and current management team was 

not involved in the 2007 citation and abatement. Both arguments fail. (R. Br. 21-22). 

The 2007 citation alleged a machine guarding violation for Dover's CNC milling machines. The 

difference between Dover’s CNC mills and CNC lathes is not such that it is reasonable for Dover’s 

management to believe machine guarding was required on a CNC mill, but not a CNC lathe. Both 

machines are used to modify blank workpieces and individually loaded by the operator. The primary 
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difference is the location of the workpiece. This difference does not support a reasonable belief the 

machine guarding requirement did not also apply to its lathes.

Respondent also states that, because Dover’s current management team was not significantly 

involved in the abatement of the 2007 citation, there is no heightened awareness. Current management's 

asserted lack of significant involvement in the prior citation does not deprive Dover of heightened 

awareness. Dover cannot claim ignorance of the 2007 citation and abatement; a corporate entity’s 

knowledge is through its key employees. See Caterpillar, Inc., 17 BNA OSHC 1731, 1732 (No. 93-373, 

1996), aff’d, 122 F.3d 437, 440-41 (7th Cir. 1997). An employer does not lose its “knowledge” when a 

supervisory employee no longer works for the organization; the employer retains the knowledge. Id. The 

knowledge Dover's safety officer, Mr. Wuske, gained during the 2007 citation and abatement was 

imputed to Dover and remained with the company after his employment ended. See Caterpillar, Inc. v. 

OSHRC, 122 F.3d 437, 440-41 (7th Cir. 1997), aff’g, 17 BNA OSHC 1731 (No. 93-373, 1996) (citations 

omitted). Further, Mr. Stingel has worked for Dover since the company was formed in 1990 and as vice 

president of manufacturing likely would have known if guards were removed from storage and installed 

on machines. Mr. Stingel also agreed Dover told OSHA in its January, 2008 Certificate of Abatement 

that operators were told to use all supplied machine guards. (Tr. 45-47, 57, 463; R. Br. 22). 

The Court finds that the 2007 citation and subsequent abatement provided Dover with a 

heightened awareness of the requirements of the cited standard and need to guard the moving parts on its 

machines. Dover allowed its operators to not use guarding in disregard of the standard’s requirements. 

The Secretary asserts that Dover’s warnings to its employees show a heightened awareness of the 

hazards. Further, Dover ignored the warnings on its machines and operating manual that stated the splash 

guard doors should be closed. Dover also ignored its own history and dismissed the hazard of making 

contact with moving parts by consciously deciding not to use guards for the CNC lathe and CNC mill

machines. (S. Br. 35-37; Exs. 7, 24). 
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Mr. Stingel admitted Dover’s machine operators did not comply with the warning signs on the 

machines. He testified that even though the warnings stated the “splash guard must be in closed position 

and engaged in interlock system,” he believed, based on his 41 years of industry experience, it did not 

apply to the Dover’s manufacturing process. (Tr. 98, 100; Ex. 24). 

Mr. Stingel admitted he made the decision that operators could operate with the guard doors open 

and he knew operators generally ran the lathes with the doors open. He also knew employees were 

warned to keep their hands out of the machine during their training. (Tr. 95, 99, 100, 103). 

The Court finds Dover’s warnings to its employees show Dover was aware of the risk of injury to 

an operator. The Court finds Dover’s choice to ignore the machine manufacturer’s warning labels based 

on Mr. Stingel’s experience in the industry was not reasonable. Messrs. Stingel, George Bitikofer, and 

Matthew Bitikofer each admitted that they had no training on machine guarding or safety generally. 

Dover management replaced the manufacturer’s warnings with its own judgement, despite their lack of 

expertise in safety or machine guarding. This demonstrates a heightened awareness of the hazard as well 

as indifference to employee safety. (Tr. 47, 208, 234; Exs. 7, 24, 30). 

Finally, after the 2012 Mullet accident, Dover continued to allow operators to keep the splash 

guard doors open during production. Instead of following the warnings to close the splash guard doors, 

Dover changed the program for the production cycle and still relied on a general instruction to its 

employees. Despite its heightened awareness from the accident, Dover continued to operate with the 

doors open in disregard of the standard’s requirements and with indifference to the safety of its 

employees.

Dover asserts that a willful characterization is negated by its good faith belief that it was in 

compliance. "It is well established that a willful charge is not justified if an employer has made an 

objectively reasonable, good faith effort to comply with the standard or to eliminate a hazard even though 

the employer's efforts are not entirely effective or complete."
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Spirit Homes, Inc., 20 BNA OSHC 1629, 1630 (No. 00-1807, 2004) (consolidated) (citations omitted); 

see also Calang Corp., 14 BNA OSHC at 1791. The employer’s belief must have been “non-frivolous.” 

Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC at 1127 (citations omitted). (R. Br. 23). 

Dover’s good faith belief is based on the lengthy experience of Messrs. Stingel and George 

Bitikofer, its operators feeling safe with the doors open, its programming fix after the 2012 Mullet 

accident, a 2010 OSHA inspection, and its lack of significant injuries. Dover also points out that it did 

not require the operators to keep the doors open and it did not pay its operators based on production. (R. 

Br. 23-25). 

Respondent bears the burden of proof to show good faith. Morrison-Knudsen Co./Yonkers 

Contracting Co., 16 BNA OSHC at 1127. An employer’s subjective belief that it is in compliance with 

an OSHA standard is not sufficient to overcome a finding of willfulness. The test is “an objective one -- 

whether the employer’s belief concerning a factual matter or concerning the interpretation of a standard 

was reasonable under the circumstances.” Williams Enters., Inc., 13 BNA OSHC at 1259. “[A]n 

employer is not necessarily spared from a finding of willfulness by taking any measure, regardless of how 

minimal, to enhance employee safety.” J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2209 (No. 87-2059, 

1993). 

For the reasons that follow, the Court finds that Dover’s beliefs and actions were not objectively 

reasonable and do not support a good faith belief it was in compliance or had abated the hazard. Neither 

management nor operators had safety training. Dover presented no evidence to show that management or 

operators had an understanding of safe operating practices or machine guarding requirements. Thus, 

Dover’s reliance on their experience in the industry for machine safety issues is not objectively 

reasonable. (Tr. 47, 234, 247). 

Dover cannot rely on an operator’s belief he is safe or give employees the option to work safely. 

An employer “cannot shift to its employees the responsibility for assuring safe working procedures.” 
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Pride Oil Well Servs., 15 BNA OSHC 1809, 1851 (No. 87-692, 1992) (citations omitted). This is 

especially true here because Dover provided no safety training to its employees. The Court finds Dover’s 

reliance on its employees’ perceptions they were safe does not support an objective good faith belief that 

guarding was not required or needed. 

Dover also asserts its response to the 2012 Mullet accident demonstrates good faith. After the 

accident, Dover modified the CNC lathe’s program to require a manual start of the production cycle in

lieu of the automated start. This argument fails. The Mullet accident demonstrated that access to the 

point of operation during a production cycle could result in an injury. The Commission has consistently 

held the cited standard “requires physical methods of guarding rather than methods of guarding that 

depend on human behavior.” H. B. Zachry Co. Int’l, 8 BNA OSHC at 1674 (citations omitted). Instead of 

using the splash guard door with a working interlock or other guarding system, Dover simply changed the 

machine’s program and continued to rely on an operator to avoid placing his hands in the machine. 

Dover’s response did not solve the problem of accidental contact with the machine’s moving parts, as 

required by the cited standard and by the machine’s own warnings. Thus, its response does not support a 

good faith belief the hazard was abated. (R. Br. 21). 

Further, Dover cannot rely on a lack of significant injury history to establish good faith. Dover 

provided no safety training to its employees and simply relied on an employee to keep his hand out of the 

machine. An employer cannot rely on luck to prevent an injury. See generally, Whirlpool Corp. v. 

Marshall, 445 U.S. at 12 (“The Act does not wait for an employee to die or become injured. It authorizes 

the [...] issuance of citations in the hope that these will act to prevent deaths or injuries from ever 

occurring”). The Court finds Dover’s lack of a significant injury history does not provide a basis for a 

good faith belief that it was in compliance with safety standards or had abated the hazard. 

Dover asserts that Mr. Stingel had a good faith belief it was safe for the operators to keep the 

doors open during the production cycle because Dover was not machining metal or using coolant. A 

supervisor’s belief that a condition is safe does not constitute reasonable, objective good faith. See Sec’y 
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of Labor v. Capital City Excavating Co., Inc., 712 F.2d 1008, 1010 (6th Cir. 1983) (foreman's good faith 

belief that trench was safe does not mitigate willfulness); Gen. Motors Corp., CPCG Oklahoma City 

Plant, 22 BNA OSHC 1019, 1044 (No. 91-2834, 2007) (consolidated) (affirming a willful violation 

where the employer's belief was neither “plausible nor reasonable”). (Tr. 465, 474-75; R. Br. 24-25). 

The record does not provide support for Mr. Stingel’s belief that guarding was needed only when 

working with metal or when using coolant. The warning in the operator’s manual specifically states that 

the splash guard door should be closed while the machine is in operation.

Respondent also asserts that Dover had a good faith belief it was in compliance because it was 

not cited for a machine guarding violation after a 2010 OSHA inspection. This argument fails. “[I]t is 

well established that an employer cannot rely on the Secretary's failure to issue a citation” as proof of 

compliance. Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1201 (No. 90-2304, 1993) 

(citations omitted), aff’d 26 F.3d 573 (5th Cir. 1994). (Tr. 302; R. Br. 22). 

Finally, not having production quotas or compensation based on production speed does not 

provide an objective good faith belief that Dover was in compliance or operating safely. 

The Court finds Dover’s assertion it had a reasonable, good faith belief that it was operating its 

machines in compliance with OSHA standard or it had eliminated the hazard was not objectively 

reasonable and fails. The Court finds the record supports the characterization of a willful violation. 

Penalty Amount

The Secretary properly classified this citation item as willful. The maximum penalty for a willful 

violation is $70,000. 29 U.S.C. § 666(a). Section 17(j) of the Act requires the Commission to give due 

consideration to four criteria in assessing penalties: the size of the employer’s business, the gravity of the 

violation, the employer’s good faith, and its prior history of violations. Compass Envtl., Inc., 23 BNA 

OSHC at 1137. 
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The Secretary proposed a penalty of $49,000 which is a 30% reduction from the maximum 

penalty of $70,000. CO Marcinko testified there was no penalty adjustment for good faith. The record is 

silent on the level of gravity that was assessed or the penalty reduction provided due to Dover’s size by 

the Secretary. (Tr. 301-02). 

 The Court finds that the Secretary’s proposed penalty of $49,000 is reasonable and appropriate. 

In assessing its penalty, the Court has considered the size of Dover’s business, the gravity of the violation, 

Dover’s good faith or lack thereof, and its prior history of violations. The Court assesses a penalty of 

$49,000.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the 

contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact and 

conclusions of law inconsistent with this decision are denied.
ORDER

 Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Citation 1, Item 1, alleging a willful violation of 29 C.F.R. § 1910.212 (a)(1) is AFFIRMED, 

and a penalty of $49,000 is assessed.

 

 

 /s/ 

Dated: June 20, 2016 The Honorable Dennis L. Phillips

 Washington, D.C. U.S. OSHRC Judge