Seven ‘serious’ safety violations related to Berne highway worker’s death

Enterprise file photo — Melissa Hale-Spencer

Berne Highway Superintendent Randy Bashwinger in the town’s highway garage in 2016.

BERNE — In its investigation into the death of Berne highway worker and former fire chief Peter Becker, the New York State Department of Labor’s Public Employee Safety and Health Bureau has found the town’s highway department to be in violation of seven different regulatory items; each violation is considered “serious.” 

Becker, 52, was killed on Oct. 21 last year after a dump truck propped up on a pneumatic jack fell on him at the town transfer station.

The PESH Notice of Violation and Order to Comply, which is posted at the Berne highway garage, states, “On October 20 & 21, 2020, lockout-tagout procedures were not used on the 2007 Sterling LT9500 tandem wheel dump truck … as identified in the employer’s lockout-tagout procedures for large trucks, prior to the servicing and maintenance of wheels and rear brake components by Berne Town Highway employees as the keys to the truck were in the ignition.” 

The notice also states that on those same days, “wheel chocks were not placed in front of and behind the wheels” of the dump truck, and that the “truck frame was not properly supported with cribbing to prevent movement when employees were exposed to elevated parts.”

Highway Superintendent Randy Bashwinger, who is also chairman of the town and county Republican committees, did not return emails and calls seeking comment. Berne Supervisor Sean Lyons also did not respond to Enterprise questions. 

The violations, the report states, may be related to the fact that:

— Employees “did not receive training in the recognition of applicable hazardous energy sources”;

— The town “did not conduct a periodic inspection on the energy control procedures that employees use for servicing or maintenance of electric, mechanical, pneumatic and hydraulic equipment, such as dump trucks, backhoes and loaders which could cause injury in the event of unexpected energizing, start up or release of stored energy”; and

—  “Procedures were not developed, documented and utilized for the control of potentially hazardous energy.” 

PESH uses the federal Occupational Safety and Health Administration’s definition of “hazardous energy,” which states, “Energy sources including electrical, mechanical, hydraulic, pneumatic, chemical, thermal, or other sources in machines and equipment can be hazardous to workers. During the servicing and maintenance of machines and equipment, the unexpected startup or release of stored energy can result in serious injury or death to workers.”

A Department of Labor spokeswoman told The Enterprise that the various training requirements are specific to the hazards that exist in a workplace.

Each of the seven violations has a date by which it must be remedied, the latest being May 4 of this year. The notice says that, if serious violations are not abated by the date provided, the Department of Labor will impose a penalty of up to $200 per day the violation continues.

Berne Supervisor Sean Lyons responded to Enterprise questions about his thoughts on the violations and how the town will ensure compliance in an emailed statement published in full as a letter to the Enterprise editor this week.

“Pete was more than aware and extremely knowledgeable of the safe work practices, standard operating procedures, energy-isolation procedures, and proper cribbing for the equipment he worked and operated daily,” Lyons said.

“I agree 100 percent with the serious necessity of LOTO [lockout/tagout] training and procedures,” he continued. “I also know the inherent risk to maintaining heavy equipment; Peter knew this also, so no amount of prior paperwork would have changed the outcome of that day — it simply was a tragic accident.”

Calling compliance with safety standards “unquestionable,” Lyons said that he has “already asked the Public Employer Risk Management Association to work with Randy [Bashwinger] and me to complete a risk assessment of the current practices and procedures to ensure full compliance with all state and federal workplace safety regulations and guidelines now and in the future.”


Workplace safety

Bashwinger, who was elected highway superintendent in 2014 and will be up for re-election this November, has been criticized for neglecting safety procedures in work areas before, primarily by Councilman Joel Willsey, the town board’s lone Democrat, who is a retired Department of Transportation employee. 

In 2019, a 71-year old woman from Middleburgh, JoAnn Hotaling, was driving on Bridge Road in Berne when her minivan fell into what she estimated was an eight-foot-deep hole in the right-of-way created by the Berne Highway Department, which was making repairs. 

Immediately before she crashed, Hotaling had driven past a sign indicating that the road was closed, but she said there were no flaggers or barricades and that she did not believe she was at fault. 

“It is common practice for drivers to proceed past ‘Road Closed signs,” Willsey wrote in a letter to the Enterprise editor shortly after the incident. “Road-closed signs are typically erected at intersections, but people still need access to and from property beyond … The actual work site, where the danger exists, is where the traveling public needs to be stopped with flaggers or barricades and signs. It certainly appears this did not happen in Berne on Aug. 1.”

Willsey has also criticized Bashwinger for placing large election signs near roads, which Willsey believes obstructed visibility, and for allegedly neglecting deteriorating road shoulders

On Becker’s death, Willsey told The Enterprise this week that he felt Becker knew better than to crawl under a truck held up only by a jack, and speculated that proper supervision and guidance would have caught the behavior.

“Perhaps [Becker] wanted to double-check one last thing and didn’t want to go through the time-consuming mandated jacking and support procedures,” Willsey said in a text, stressing that he had no intimate knowledge of the accident. “That’s what supervision is all about. That is one situation where a good supervisor would tell him the time isn’t as important as the safety.”

Other town residents have voiced concerns about Bashwinger’s part-time job with the Albany County Board of Elections. Bashwinger told The Enterprise in 2019 that he logged approximately 17 hours per week with the county, working from 8:30 a.m. until noon, but that he still put in between 50 and 75 hours per week for the town.

Bashwinger’s Berne salary for 2021 is $56,466.

Board of Elections’ Republican Commissioner Rachel Bledi confirmed this week that Bashwinger still works part-time for the county.

In a joint letter to the Enterprise editor published in 2019, former town board members Dawn Jordan and Karen Schimmer, both Democrats who left office in 2019 after not seeking re-election, wrote of Bashwinger’s county and town jobs, “It would seem that neither job is getting his full attention. Both are being cheated, and he’s cheating the taxpaying public by working two publicly-funded jobs at the same time.”

A Department of Labor spokeswoman told The Enterprise that workplace safety and health inspections are “initiated due to complaints and referrals, imminent danger notifications, emphasis programs in high hazard industries (program planned), due to fatalities, and accidents,” adding that safety consultations are free for small- and medium-sized businesses.


Below are summaries of each of the seven violations PESH identified, drawn from the notice, as well as the dates by which each must be addressed:

— “Procedures were not developed, documented and utilized for the control of potentially hazardous energy when employees were engaged in activities covered by this section.” This violation must be abated by April 13;

— “The employer did not conduct a periodic inspection of the energy control procedure at least annually to ensure that the procedure and the requirement of this standard were being followed.” This violation must be abated by April 13;

— “Authorized employee(s) did not receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the workplace, and the methods and means necessary for energy isolation.” This violation must be abated by May 4;

— “The machine or equipment was not turned off or shut down using the procedures established for the machine or equipment.” This violation must be abated by Feb. 23;

— “All energy isolating devices that were needed to control the energy to the machine or equipment were not physically located and operated in such a manner as to isolate the machine or equipment from the energy source(s).” This violation must be abated by Feb. 23;

— “Lockout or tagout devices were not affixed to each energy isolating device by authorized employees.” This violation must be abated by Feb. 23; and

— “Loads were not cribbed, blocked, or otherwise secured immediately after being raised with a jack.” This violation must be abated by Feb. 23.


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