concurring in part and dissenting in part.
I concur with the majority in denying enforcement of the Board’s order. I disagree with the standard of review adopted by the majority and with the majority’s decision to set aside the election rather than to remand for an evidentiary hearing as to the materiality and impact of the misrepresentation.
1. Standard of Review
The majority distinguishes between the “substantial evidence” standard and the more deferential “abuse of discretion” standard used by the courts of appeals in reviewing Board decisions, and decides that the less deferential “substantial evidence” standard is applicable in this case.
The wide discretion accorded to the Board in election matters has its genesis in NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946), where the Supreme Court said, “Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.” The majority appears to concede that A. J. Tower Co. requires that an abuse of discretion standard be utilized when the court is reviewing election procedures established by the Board, but it draws a distinction between review of “election procedures and policies established by the Board” and review of determinations regarding the “application of those proce*74dures and policies to specific elections.” Typescript op. at 67,. Although the majority is correct that the issue in the A. J. Tower Co. case involved Board-established election procedures, there is no suggestion in that opinion that the wide discretion enjoyed by the Board should be limited to that aspect of its election-supervising role, nor have the subsequent cases citing A. J. Tower Co. made the distinction adopted by the majority in this case.
The majority suggests that, in reviewing the Board’s application of its procedures and policies to charges of election misconduct in a particular case, courts “have made reference to the A. J. Tower Co. standard even as they have applied the substantial evidence standard.” Typescript op. at 67. However, the cases relied on for that proposition do not in fact support it. On the contrary, the three cases cited by the majority stand at most for the proposition that instead of applying either the “abuse of discretion” or the “substantial evidence” standard, there has been a regrettable amalgamation of the two. Thus, in NLRB v. El-Ge Potato Chip Co., 427 F.2d 903, 906 (3d Cir. 1970), cert. denied, 401 U.S. 909, 91 S.Ct. 869, 27 L.Ed.2d 807 (1971) (citations omitted), we stated:
It was long ago settled that the Board is entrusted with a “wide degree of discretion” in establishing and enforcing the procedure and safeguards necessary to insure the fair and free choice by employees of their bargaining representatives. “Considerable weight * * * must therefore be accorded the Board’s findings, with judicial review narrowly limited to ascertaining only their reasonableness.” Whether this court would reach the same conclusion from the evidence as did the Board is immaterial, as long as the Board’s finding that the election was fairly conducted is supported by substantial evidence in the record considered as a whole.
After reviewing the entire record, we cannot say that the Board acted unreasonably in concluding that the election was fair and proper.
Similarly, in NLRB v. Golden Age Beverage Co., 415 F.2d 26 (5th Cir. 1969), the court referred on numerous occasions to the “wide degree of discretion” which must be accorded to the Board’s determination:
We must resolve whether the Board, by overruling the Company’s objections to the representation election without a hearing, acted within its wide degree of discretion.... [Id. at 28].
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Certain well established principles guide this inquiry. Most important is the wide discretion Congress has entrusted to the Board in its conduct and supervision of elections.... “Thus, the only question presented to the Courts in an election review *is whether the Board has reasonably exercised its discretion.” [Id. at 29 (citation omitted) ].
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[N]o area is more within the expertise of the Board than the proper limits of campaign propaganda and the impact of employer and union statements upon the employees’ exercise of free choice. [Id. at 30].
The court also, without any suggestion of inconsistency, said:
Whether this Court would reach the same conclusion as the Board from the conflicting evidence is immaterial, so long as the Board’s finding that the election was fairly conducted is supported by substantial evidence in the record considered as a whole. [Id. at 29],
The third case cited by the majority, NLRB v. Pinkerton’s, Inc., 621 F.2d 1322 (6th Cir. 1980), also failed to observe the distinction between the two standards. The court stated:
Congress has entrusted to the Board considerable discretion in conducting elections and resolving disputes concerning representation. The task for this Court is to determine whether the Board acted arbitrarily in the exercise of its discretion. The Board’s findings, if supported by substantial evidence, must be affirmed even though this Court might justifiably *75reach a different conclusion had it reviewed the case de novo.
Id. at 1324 (citations omitted).
Contrary to the majority’s suggestion that the courts have applied the substantial evidence standard as distinct from the abuse of discretion standard in reviewing Board determinations as to the effect of election conduct, the cases cited by the majority, which involved charges of particular election misconduct not the formulation of general procedures and policies, emphasized the wide discretion enjoyed by the Board in election matters. At most, these cases indicate that the courts often seem to use “abuse of discretion” and “substantial evidence” interchangeably.
It may be that given this state of affairs, we are free to decide the issue de novo. We are, however, bound to follow the precedent of this court. Although, as El-Ge Potato Chip indicates, we have not always been meticulous in observing the distinction between the two standards, our recent cases suggest that we have most frequently, although not invariably, applied the abuse of discretion standard to the election conduct issue before us. In Monmouth Medical Center v. NLRB, 604 F.2d 820 (3d Cir. 1979), we employed an abuse of discretion/arbitrariness standard in a case involving charges of Union misconduct. Although we refused to enforce the Board’s order that the Company bargain with the Union, we did so on the ground that “the Board’s certification decision ... amounted to an abuse of discretion.” Id. at 821. See also id. at 823, 825. In NLRB v. Campbell Products Department, 623 F.2d 876, 879 (3d Cir. 1980), we noted that “[t]he Board has wide discretion in evaluating the circumstances surrounding an election and determining whether these circumstances allowed a free and fair choice by the voters.” See Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 295-96 (3d Cir. 1981); Wells Fargo Guard Services v. NLRB, 659 F.2d 363, 370 (3d Cir. 1981). But see Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000, 1002, 1005 (3d Cir. 1981).
The approach in these cases accords with that generally followed elsewhere. For example, in Melrose-Wakefield Hospital Association, Inc. v. NLRB, 615 F.2d 563, 566-67 (1st Cir. 1980), the court stated:
In seeking to overturn the Board’s decision overruling the objections, the Hospital faces a heavy burden. The Board has wide discretion in setting standards for the conduct of representation elections, and its rulings on the effect of a particular campaign practice will be set aside only if they are an abuse of discretion.
The Board has adhered to different standards over the years for evaluating what range of misstatements will so mar an election that its results must be set aside.... Our task as a reviewing court is not to evaluate the merit of the Board’s policy, the development of which is committed to their expertise, but merely to ascertain whether the agency abused its discretion in applying the standard to particular facts.
(emphasis added) (citations & footnote omitted). As Professor Gorman has written, “In the great majority of cases, the decision of representation issues will invite the exercise of considerable discretion in the application of vague (or nonexistent) statutory mandates to highly particularized facts.” R. Gorman, Labor Law 60 (1976). Professor Gorman included among the categories of issues to which this standard has been applied both “the upsetting of ‘laboratory conditions’ which are a prerequisite to a valid election” and “the propriety of conduct at election locations.” Id.
The majority confuses the review of findings as to the occurrence of an unfair labor practice, which are subject to the substantial evidence standard, with the question of the impact of election misconduct. Typescript op. at 67-68 n.5. As our decision in Monmouth Medical Center illustrates, we have accorded the Board greater deference in the latter area.
The most careful, and for me the correct, allocation between the issues governed by the “wide discretion” and “substantial evi*76dence” standards was made by Judge Pell. In Peerless of America, Inc. v. NLRB, 576 F.2d 119, 122 (7th Cir. 1978) (citations omitted), he wrote, “We note that the Board has been entrusted with broad discretion in determining the nature and extent of preelection campaign propaganda that will be allowed, and thus considerable deference must be given to the Board’s expertise in this area. We will not upset the Board’s decision unless we find that it abused its discretion; however, the Board’s findings of fact are conclusive if supported by substantial evidence.”
There are indeed practical reasons for according wide deference to the Board’s election decisions, even when the issue is election misconduct. As the court stated in NLRB v. Nixon Gear, Inc., 649 F.2d 906, 910 (2d Cir. 1981) (citations omitted), a case raising the issue of election misconduct: “ ‘The conduct of representation elections is the very archetype of a purely administrative function, with no quasi about it, concerning which courts should not interfere save for the most glaring discrimination or abuse,’ lest appellate interference threaten the essential functioning of a system that governs, according to well-settled standards, the conduct of nearly 10,000 elections annually.”
I believe the attempt by the majority to clarify the confusion which has surrounded the applicable standard of review in election cases is commendable; I believe its selection of the applicable standard in this case is erroneous.
2. Necessity of a Hearing
I agree with the majority that distribution of the handbill under the circumstances in this case could constitute a misrepresentation, notwithstanding the literal truth of the statement. I believe, however, that the appropriate course would be to remand to the Board for an evidentiary hearing as to the materiality and impact of the misrepresentation.
As the majority notes, an election will not be set aside unless the misrepresentation related to a material fact and had a significant impact. In this ease, there has been no hearing on either the materiality or the impact of the misrepresentation. The issue was not addressed by the Regional Director because of his erroneous view that the statements were shielded by their literal truth. When the issue was presented to the Board in the context of the unfair labor practice charge, it refused to hold a hearing. Thus, those on whom we would ordinarily rely to make the relevant factual findings have not done so.
There are cases in which the courts have held it appropriate to set aside an election although no hearing was held. See, e.g., NLRB v. Nixon Gear, Inc., 649 F.2d 906 (2d Cir. 1981) (company argued it had been prejudiced by the delay); NLRB v. Carroll Contracting & Ready-Mix, Inc., 636 F.2d 111 (5th Cir. 1981). See also Monmouth Medical Center v. NLRB, 604 F.2d 820 (3d Cir. 1979) (election set aside without discussion of whether hearing should be ordered or whether a hearing had been requested). However, in most of the recent cases in which this court has denied enforcement in unfair labor practice proceedings involving underlying election challenges, we have remanded for a hearing. See, e.g., Wells Fargo Guard Services v. NLRB, 659 F.2d 363 (3d Cir. 1981); Season-All Industries, Inc. v. NLRB, 654 F.2d 932 (3d Cir. 1981); Vitek Electronics, Inc. v. NLRB, 653 F.2d 785 (3d Cir. 1981); Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir. 1981).
The clearest rationale for remanding to the Board for a hearing in this case appears in NLRB v. Silverman’s Men’s Wear, 656 F.2d 53 (3d Cir. 1981) (per curiam), in which both judges constituting the majority here were also on the panel. In that case, the Company alleged that a union official had made an anti-Semitic slur against a company official. The court concluded as a matter of law that the remark was illegitimate, but remanded for a hearing to “determine the extent of its probable impact on the election.” Id. at 58. The court stated:
We conclude that under the law announced in Sewell [Manufacturing Co., 138 N.L.R.B. 66 (1962)], the Company’s *77allegations, if true, would warrant a new election, assuming that the totality of circumstances surrounding Baird’s remarks evinced an atmosphere in which those remarks may reasonably be expected to have had a significant impact on the employees’ free exercise of choice. These factors should properly be explored at a hearing, because they constitute substantial and material factual issues necessarily arising out of the allegations made in the Company’s objection. See Anchor Inns, Inc. v. NLRB, 644 F.2d at 296. Having received the Company’s allegations, it was only through a hearing that the Regional Director could determine that such circumstances were not present, for only through a hearing could the union have borne its burden of proving that the utterance was harmless. Such a course — followed already by at least some Regional Directors — is necessary if elections are to be kept free, as they should be, from appeals to racial or religious prejudice.
Id. at 60. The election misconduct in Silverman’s would appear to be more patently improper than that involved here. I believe, therefore, that we should follow the course utilized there, and remand for a hearing to give the Union the opportunity to show that the misrepresentation in this case did not have the forbidden impact.1
. The majority has chosen not to address the issue of the appropriateness of the unit determination. The Company challenges the inclusion of the head cashier and two students in the unit. See typescript op. at 65 n.3. The inclusion of the students will probably not recur. However, since the majority orders a new election, I assume it approves the determination that the head cashier was appropriately placed in the unit, a determination which I believe is supported by the record in this case.