As the cases discussed above make clear, the current NLRB is hardly employer-friendly, so it's remarkable when the Board actually refuses to side with a union. In Mental Health Ass'n, Inc., the Board did exactly that, rejecting a union's suggestion that voting in representation elections should be held at neutral locations away from the employer's premises. However, the Board did so only after finding that a first election, which the SEIU Local 509 lost by 131-82, should be set aside.

Liebman, Pearce, and the usually-dissenting Hayes agreed with the recommendation of an NLRB hearing officer to set aside the results of the election. According to the Board, the employer changed the route and method by which employees could enter the facility by limiting access to the customary employee entrance and turning control of the entrance over to "openly antiunion" workers for part of the designated polling period. The employer also added security personnel, erected a fence around part of its parking lot, and posted "private property" signs, "all apparently without security justification," according to the Board. The panel found that "the totality of this conduct reasonably tended to interfere with employees' free and uncoerced choice in the election."

The union had urged the Board not only to order a second election, but also to order that the new election be conducted at a neutral location away from the employer's premises and outside the employer's control. Under current policy, the Board favors elections on the employer's premises. But the SEIU asked to file an amicus brief, arguing that "the Board should instead presume that balloting must occur at a neutral site, outside of either party's control, absent contrary agreement."

Liebman and Pearce wrote that the case "illustrates some of the shortcomings of the Board's current practices regarding the siting of elections," but that they were "not prepared at this time . . . to deviate from the Board's current practice of leaving determination of the location for initial and rerun elections to the discretion of the Regional Director."