Decisions by Administrative Law Judges (ALJs) rarely get much attention, so it was surprising when the New York Times gave prominent coverage to a recent decision by a National Labor Relations Board ALJ finding that a software company, Atlassian, illegally fired a worker for criticizing the company’s top managers.  When I read the ALJ’s decision, I kept thinking, when will CEOs learn that they don’t need to surround themselves with sycophants?

The Atlassian case involved an engineer, Denise Unterwurzacher, who had a history of speaking out on internal message boards when she thought upper management had failed to fully consider the impact of their decisions on rank-and-file workers.  The incident that led to her termination happened during a Zoom meeting where the company’s co-CEO, Mike Cannon-Brookes, and its Chief Technology Officer addressed workers about a plan to eliminate some front-line manager positions.  The decision would also impact lower-level workers both because they might have to take on some of the duties that had been performed by managers, and because they would have less contact with front-line managers.  During the Zoom meeting, someone asked what would happen to the managers whose positions were eliminated.  The Chief Technology Officer responded that “a very small number” would lose their jobs.  This led to several comments from participants wondering what the “small number” would be.  Cannon-Brookes, who is a part owner of the Utah Jazz, was attending the NBA draft on the day of the meeting, and he was wearing a Jazz shirt during the meeting.  Cannon-Brookes spoke up in response to the comments.  In a tone that one worker described as “very upset,” he said that he’d had enough of people not trusting leadership, and “if we say it’s a small number, then it’s a small number.”  He added, using Australian slang, “if you want to nark, go elsewhere.”  The ALJ noted that in this context “nark” means either to criticize harshly or to be annoyed where you have no right to be.  Cannon-Brookes’ remarks led to a number of negative comments in the Zoom chat. Unterwurzacher then added to the chat, writing, “What’s up Outragers? Just dialing in from my NBA team’s headquarters to yell at the people whose careers I’ve just pummeled, wyd?” (WYD stands for what are you doing.)

Several hours after the Zoom meeting, the other co-CEO reached out to Unterwurzacher over Slack, accusing her of making an “ad hominem” attack.  She responded by explaining that “’small’ is a relative term, and it conveys emotions, like ‘unimportant.’”  She also added that even those who aren’t let go might leave because they don’t want the positions they are offered, and that this would amount to a hidden layoff.  She wrote that the failure to acknowledge this “is leading to more distrust,” and Cannon-Brookes’ reaction “has made the trust gap even worse.”  Unterwurzacher was fired a few days later, and when she asked for a written description of the incidents that caused her termination, the employer responded that she had “engaged in acrimonious communications and ad hominem attacks.”

The protections afforded to workers under the National Labor Relations Act include the right to openly criticize decisions made by management that relate to workers’ terms and conditions of employment. But, the right to criticize is not unlimited, and a worker may lose the Act’s protection by making profane or offensive remarks in the course of engaging in otherwise protected speech.  The Board applies a “totality of the circumstances” test that doesn’t provide clear guidance in advance as to when a worker crosses the line into unprotected speech.  Nevertheless, Unterwurzacher’s case was not particularly close because her comments were not vulgar, obscene, or threatening in any way.  Moreover, they were provoked by Cannon-Brookes raising his voice, and effectively threatening that Atlassian will not tolerate workers who complain about their terms and conditions.

Think about the message that Atlassian sent its employees by firing Unterwurzacher.  The company offered no criticism of the quality of her work.  Instead, in Atlassian’s own words, it fired her for making “a gratuitous personal attack on Atlassian’s co-founder.”  But consider the nature of that attack.  Unterwurzacher made two separate legitimate points.  First, it wasn’t a good look for Cannon-Brookes to join the meeting wearing a Utah Jazz shirt that only served to remind employees that he has a second job or hobby that might be taking his attention away from Atlassian.  Second, it wasn’t helpful for him to lash out at workers who were trying to process a company decision that was going to affect their livelihoods.  Sometimes the truth hurts, but even if Cannon-Brookes thought the criticism was unfair, what does it say about him if his ego is so fragile that he can’t just absorb it and move on?

Any CEO who is paying attention to the second Trump Administration should be learning an important lesson about the dangers of a boss who surrounds himself with yes men.  The war with Iran highlights this danger.  It’s quite possible that Trump blundered into the war because he had gotten rid of any advisors who would have warned him that Iran would probably shut down the Strait of Hormuz.  While the stakes are lower for corporations, the risks are similar when underlings are afraid to suggest that a plan might be flawed.

Too many businesses operate like authoritarian states, with the CEO giving orders, and everyone else being too scared to question any decision that the CEO makes.  Senator Robert Wagner, who was the prime sponsor of the NLRA, had a vision that the NLRA would bring about industrial democracy.  Wagner described this as “fair participation by those who work in the decisions vitally affecting their lives and livelihood.”  One of the cornerstones of democracy is freedom of speech.  While it feels utopian to suggest that workplaces might function as true democracies, surely they don’t need to operate like dictatorships.  Workers obviously want the freedom to speak openly about matters that affect their livelihoods. The NLRA protects criticism even when managers don’t think it adds value because voicing dissatisfaction is the first step toward engaging in concerted activity for mutual aid or protection. But bosses and shareholders should also want workers to share their opinions, preferably before decisions are made.  An idea might sound great in the executive suite, but that doesn’t necessarily mean it can be operationalized.  Sometimes there are good reasons for keeping a decision a closely guarded secret before it is revealed, but in most cases the benefit of that kind of closed door decision-making is overrated by executives.  Even when rank-and-file workers don’t have insights that will improve a decision, they are more likely to buy into a change if they have been consulted beforehand. 

There’s a reason why the story of the emperor’s new clothes has such resonance.  People in power are no more infallible than the rest of us.  The only difference is that when people without power make mistakes, others don’t hesitate to tell them.  Every boss should realize that if their employees aren’t criticizing them to their face, workers are definitely whispering about them and maybe even laughing at them behind their backs.