Analysis & Commentary
President-Elect Donald Trump has managed to confound the most carefully constructed predictions about what he will do next throughout his political career, and after his victory in the 2024 election he has proven once again that is the only thing you can consistently expect from him.
Normally, a President-Elect waits more or less patiently for inauguration day in January to announce the new Administration’s plans, but Trump took charge right away, revealing a raft of cabinet nominations and appointments of other positions, and he even initiated negotiations with foreign leaders over trade and immigration issues.
The cabinet and other top personnel announcements appear to be a mixture of people who served in his previous Administration, prominent policymakers and members of Congress he has gotten to know, and television commentators who have impressed him. It remains to be seen how all of them will fare during the Senate confirmation process, with one—former Rep. Matt Gaetz, originally picked for attorney general—already having to walk the plank not long after he was nominated.
Also, a bit less bewildering was the naming of another former House member, Sean Duffy, as Secretary of Transportation. Duffy never served on any relevant committees when he was in office and has never publicly displayed any interest in transportation issues as a prominent Fox News star. The only thing that jumps out was his 2011 vote in Congress to eliminate the Davis–Bacon Act requirement for federal infrastructure projects to meet prevailing wage requirements in hiring, meaning union wages.
But Duffy is regarded as intelligent, knowledgeable in the ways of Washington and it is not unreasonable to expect he will at least do better than Pete Buttigieg. Like Duffy, many other more successful Transportation Secretaries who served in both Republican and Democrat Administrations also had no specific background in transportation before stepping into that role.
When it comes to transportation policy, that will be anyone’s guess. You can scour the platform and policy agenda statements issued by both the Republican Party and the Trump campaign to find any mention of those issues. But Trump obviously believes that Duffy is up to the task.
“He will prioritize excellence, competence, competitiveness and beauty when rebuilding America’s highways, tunnels, bridges and airports,” Trump said when announcing Duffy as his pick to head the Department of Transportation. “He will ensure our ports and dams serve our economy without compromising our national security, and he will make our skies safe again by eliminating DEI [Diversity, Equity and Inclusion] for pilots and air traffic controllers.”
American Trucking Associations president Chris Spear offered ATA’s support. “Roads and bridges are our shop floor. We know Congressman Duffy understands that and the opportunity is now before us to improve our transportation network by reducing congestion, investing in truck parking, enhancing highway safety and supporting the development of innovative technologies. He is an exceptional choice to lead the DOT.”
One challenge that Duffy will face immediately is the International Longshoremen’s Association union’s threatened strike against East Coast and Gulf Coast Ports, which President Biden kicked down the road this summer during the campaign so it would end up in the lap of the new President. It is nearly a sure thing that Trump will take the lead in trying to resolve this dispute, but Duffy will need to play an effective supporting role.
It is difficult to imagine that Duffy will make any major changes in transportation policy, which generally attracts bipartisan support. However, attempts to strengthen rail safety enforcement that arose following the New Palestine, Ohio, derailment that were stymied in Congress may get a fresh look from the administration now that one safety reform sponsor, former Ohio Senator J.D. Vance, will be sworn in as vice president.
Teamsters Pick DOL Chief
One of the biggest surprises of the post-election period was the announcement that Trump intends to nominate Rep. Lori Chavez-DeRemer (R-OR) to serve as the next Secretary of Labor. It is no secret that she is the pick of Teamsters Union General President Sean O'Brien, who contributed to the Trump campaign’s success when he gave a televised speech for Trump at the Republican national convention this summer, becoming the only major union leader to endorse the former President.
“Nearly a year ago, you joined us for a Teamsters roundtable and pledged to listen to workers and find common ground to protect and respect labor in America,” O’Brien said after the DOL nomination announcement. “You put words into action. Now let’s grow wages and improve working conditions nationwide. Congratulations to Rep. Chavez-DeRemer on your nomination! North America’s strongest union is ready to work with you every step of the way to expand good union jobs and rebuild our nation’s middle class.”
Trump stated, “Lori has worked tirelessly with both business and labor to build America’s workforce and support the hardworking men and women of America. I look forward to working with her to create tremendous opportunity for American workers, to expand training and apprenticeships, to grow wages and improve working conditions, to bring back our manufacturing jobs. Together, we will achieve historic cooperation between business and labor that will restore the American dream for working families.”
Chavez-DeRemer, who was narrowly defeated for re-election in November and whose father was a Teamsters member, has a well-earned reputation for being pro-labor in policy matters. This includes having cast her support behind the PRO Act union-backed legislation that was introduced the first day the new Congress convened after Joe Biden was elected and which failed to pass because even some Democrat legislators balked at its sweeping proposals, which included card check.
As you might imagine, this particular nomination created some quiet consternation among major employer groups and sparked skepticism from employer attorneys. A quick glance at the Teamsters’ policy agenda gives more than a hint about why. In addition to favoring enactment of the PRO Act bill, the union also supports the Biden DOL’s joint employer rule and initiatives limiting independent contractor status.
The Teamsters also favor expansion of federal minimum wage salary requirements and legislative continuation of the Davis-Bacon Act provisions requiring that prevailing wages be paid on government projects. In addition, don’t expect much change—at least on the policy level—at DOL’s Occupational Safety and Health Administration (OSHA).
It remains to be seen whether there will be a switch back to the previous Trump Administration OSHA’s emphasis on educating and working with employers to improve safety practices, instead of playing “gotcha” with strict enforcement that also appears directed to support various union organizing campaigns, like those being waged at Amazon.com by the Teamsters. However, it is no surprise that the union favors a strong and active OSHA in general.
Employers also are keeping an eye out for what Trump will do when it comes to the alphabet soup of independent federal agencies and boards, each of which has its own separate identity, tangled legal history and sharply defined ways of regulating employer behavior.
Will the NLRB Reverse Course?
One major challenge for Trump on the domestic side will be the National Labor Relations Board (NLRB), which is responsible for monitoring and enforcing standards of behavior that apply to unions and employers, especially when it comes to efforts by unions to organize businesses and other organizations.
The President-Elect’s new allies, the Teamsters, have special reason to be happy with Biden’s NLRB, which has handed it a powerful tool to aid in organizing reluctant employers even when they can’t count on a majority of the affected workers at a worksite voting to approve union representation. Last year, the NLRB made it possible to organize employees without holding an actual vote in its Cemex ruling, which is being challenged in court but still stands as the law of the land for the time being.
One prime example for where this can lead is that the Teamsters have formally asked the NLRB recently to certify its representation of workers at Amazon automatically in the absence of an election because of the union’s assertion that the online retailer failed to negotiate with it in good faith. The union claims that Amazon has refused to negotiate with the union or to promptly file a representation election petition with the NLRB after a majority of workers at the company’s San Fransisco warehouse signed authorization cards.
This is what is commonly called card check, which has been rejected by Congress because the process is done in public view—unlike a secret ballot—and opens employees to be subjected to union intimidation in encouraging them to sign. Don’t expect a resolution of this issue even if the NLRB under Trump continues to maintain its stance. Amazon is dealing with a similar charge arising from organizing a facility in New York that is currently tied up in litigation, which would be expected to in this case as well if the NLRB ends up doing the union’s bidding.
What is almost assured is that Trump will unceremoniously dismiss NLRB General Counsel Jennifer Abruzzo on his first day in office, just like Biden did to her predecessor on inauguration day in 2021. The general counsel is in a unique position because the board generally does not adopt policies through rulemaking proceedings, like other federal agencies, but by establishing precedents through decisions made in individual unfair labor practice complaints brought before it.
Because of this unique way of making policy, it is the general counsel responsible for supervising the board’s army of regional attorneys who decides which cases will be brought before the board for adjudication. Abruzzo since taking her role has made national labor policy simply by making public her memoranda distributed to the regional attorneys, some of which have been highly detailed and lengthy and obviously aimed at gaining employers’ attention.
Because of this important role in the NLRB, the general counsel is nominated by the President and then approved by the Senate for a five-year term (much like the chairman and other board members). Before Biden, other presidents—including Trump after 2017—allowed the current counsels to serve out their terms. Biden, however, chose to fire the Trump-appointed general counsel within 30 minutes of being sworn in as President, establishing a precedent Trump can follow in 2025.
But once again, because Teamsters President Sean O’Brien has Trump’s ear, it is not at all certain that the incoming president will pick an employer-friendly lawyer to fill this all-important role and a board that can help reverse all of the excesses the NLRB committed over the last four years.
Starving the FTC and EEOC?
One place you can count on seeing a major change is the Federal Trade Commission (FTC), where Biden-appointed Chairman Lina M. Khan has led that agency away from its traditional role as an enforcer of antitrust laws to wade into labor and employee rights issues, such as attempting to impose a nationwide ban on the employer use of noncompete agreements applying to their workers.
Under her leadership, the FTC went so far as to sign agreements with other federal agencies to inject labor matters into merger and acquisition approvals and share investigative data with the NLRB as well as DOL and the Department of Justice (DOJ) regarding labor issues. (The FTC in September mysteriously withdrew from the DOJ and DOL agreement that it had signed last September, only a month after having signed it.)
Khan’s term as a commissioner recently expired but under the law she is allowed to continue to serve in that post until she either is nominated for a new term or is told to leave. In this case, it’s not hard to guess what Trump’s express wishes will be.
Another government body with a direct impact on employers is the Equal Employment Opportunity Commission (EEOC), which handles civil rights complaints and enforces laws like the one adopted most recently by Congress to require workplace accommodation for nursing mothers. It will be interesting to see if an Administration that is so fiercely opposed to Diversity, Equity and Inclusion (DEI) efforts will seek to change the commission’s enforcement priorities.
Among other things, this could mean pulling back on the changes to the EEO-1 reporting form for employers that requires them to supply the agency with mountains of data each year about the members of their workforce. At the end of November, the commission also proposed adding new reporting requirements to help its enforcement of the new pregnancy law rules it has adopted.
Such changes by the new Administration are facing threatened massive resistance at the state level. Political leaders in Democrat-dominated states like California have already declared that they intend to develop their own laws and programs to replace any they believe were wrongly diminished or shut down completely at the federal level by Trump and the new Republican Congress.
“We expect we’ll see sort of a groundswell of activity from more progressive states and localities that will act as a counterbalance to some of what this new administration will be doing,” observes Corbin Carter, an attorney with the Mintz law firm.
A lot of attention has been paid in the media to the anti-regulatory Department of Government Efficiency (DOGE) headed by Elon Musk and Vivek Ramaswamy. But for all of the public fireworks and strong rhetoric, it is unclear exactly how they will go about taking on the sprawling federal bureaucracy and entrenched interests represented in Congress who find its existence useful for their purposes.
In fact, it might be possible that the DOGE effort will take some of the heat off the members of Congress who otherwise might be reluctant to shut down or seriously reduce the size of the government, much the same way that an independent commission helped choose which military bases would be shut down, taking the onus off legislators who were reluctant to be seen publicly favoring the closure of bases in their home districts and states.
There is another solution available to Congress, which retains the power of the purse through its constitutional control of the federal budget: sheer starvation. In recent years the leaders of several federal agencies have not been shy about complaining that they are underfunded and understaffed.
Earlier this fall, when speaking at the National Press Club, the NLRB Counsel Jennifer Abruzzo bemoaned the fact that because the board’s regional offices were understaffed she couldn’t do more to impose her theories on employers across the country. By slashing agency budgets, Congress can go a long way toward defanging some of the more activist bureaucracies, at least in the short term.
Similar complaints have arisen at OSHA for years, starting back in the days of the Obama Administration. In some cases, some of the understaffing can be traced to the shortage of qualified personnel and competition for the limited supply of safety inspectors by private sector and state government employers. In 2016, OSHA had 952 inspectors. But by 2020, the last year of the first Trump Administration, that number had dropped to 790. By the end of 2023, there were 878 inspectors at OSHA, representing an 11% increase from fiscal year 2020, but it is safe to anticipate that this number will see more shrinkage during the second Trump Administration.
