This case is before us on the petition of J-Wood/A Tappan Division (J-Wood), an employer, for review of a National Labor Relations Board decision and order holding that J-Wood violated section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) (1976), by refusing to bargain with Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC, a certified bargaining representative. J-Wood refused to bargain in order to obtain judicial review of its contention that the Board erred in certifying the bargaining representative without ordering an evidentiary hearing on its objections to the election.
Judge Rosenn’s opinion announcing the judgment of the court proposes to hold that an adversarial evidentiary hearing be held (1) to determine the status of employee William Ross as a union agent, and (2) to determine whether, if Ross was a union agent, his remarks to employee Dobson might have influenced the outcome of the election. Judge Hunter, while joining in a judgment remanding for an evidentiary hearing on both issues, suggests that Ross’ *319agency status may not be dispositive. Their positions in these respects are predicated on the proposition that an adversarial evidentiary hearing must, as a matter of law, be held whenever we conclude that an employer’s objections raise a substantial and material issue of fact.
In NLRB v. ARA Services, Inc., 717 F.2d 57 (3d Cir.1983), a majority of this court sitting in banc rejected the position that we review election certification issues by the standard applicable to review of grants of summary judgment under Fed.R.Civ.P. 56.1 Our review is confined to determining (1) whether the regional director abused the discretion vested in him by 29 C.F.R. § 102.69(d) to report on objections to the conduct of elections on the basis of an administrative investigation, and (2) whether the Board, in reviewing the report of the regional director, abused its discretion in passing upon exceptions to the regional director’s report. Consistency with controlling precedent in this court demands that we confine review of the Board’s order in this case to that highly deferential standard.
The Judges in the majority, while paying lip service to the abuse of discretion standard, have in fact reviewed the agency record as if they were exercising the plenary review appropriate for Rule 56 summary judgments by the district courts. For them, failure to hold a hearing when a material fact issue appears is an abuse of discretion as a matter of law. That scope of review is entirely inconsistent with the ARA decision. Their' holding is simply a disingenuous way of disregarding the ARA holding, and a patent disregard of our rule that a panel may not overrule a third circuit precedent.
Under ARA it is appropriate that I consider whether either the regional director or the Board committed an abuse of discretion in this instance, for if there were an abuse of discretion I would agree that enforcement should be denied.
The majority holds, and I agree, that remarks attributed to employees Ely and Eckley provide no basis for setting aside the election. Judge Rosenn notes as well that J-Wood has abandoned its objection to the election based upon pre-election correspondence from the Union. Thus what remains is the contention that the regional director and the Board abused their respective dis-cretions in concluding that no evidentiary hearing was required with respect to pre-election remarks attributed to employee Ross.
To put the Ross remarks in context, we start with the observation that his name is not mentioned in J-Wood’s August 14, 1980 objection to the election. It first appears in J-Wood’s September 10,1980 position paper, which in relevant part says:
Employee George Dobson was also threatened by in-house organizers. Two or three days before the election, Mr. Dobson was approached by organizer Tom Eckley, who told him, “If the Union gets in and you don’t sign up, you’ll be out the door.” Later that day, Mr. Eck-ley and organizer Bill Ross approached Dobson and Ross repeated essentially what Eckley had said earlier. Then Ross said, “If you don’t sign that paper, you’ll be out the door.” Mr. Dobson believed, based upon these statements, that if he refused to join the union, he would lose his job.
App. at 9a.
Neither in J-Wood’s objection to the election nor in its position paper was any assertion made that Dobson repeated the remarks attributed to Ross to any other employee. Rather, J-Wood’s position paper urged that “[i]t is clearly reasonable to assume that the threats were common knowledge in the plant.” App. at 11a. No factu*320al basis was set forth for the reasonableness of such an assumption. Absent such a basis it was not an abuse of discretion for the regional director to decline, if he did so, from making that assumption.
J-Wood’s position paper also addressed Ross’ status as a union agent, observing:
You have expressed concern about the fact that you have uncovered no direct proof that ... [Mr.] Ross [was an] agent[] of the ACTWU. We submit, however, that in a case such as this, where the election was decided by only one vote, it is entirely proper to set aside the election even without direct proof of union agency.
App. at 12a. Thus it was J-Wood’s position during the regional director’s investigation that Ross’ agency status was irrelevant, a position that Judge Rosenn correctly, albeit tacitly, rejects. Only as an afterthought, in a footnote to its September 10, 1980 position paper, did J-Wood assert that “[t]he Company will be prepared to prove at a hearing, if necessary, that . .. Ross [was], in fact, known throughout the plant as” a union agent. App. at 13a. The language in the footnote was evidently chosen with care. J-Wood carefully refrained from saying that it knew of any evidence that Ross was in fact a union agent. The employer’s basic position was that regardless of Ross’ agency status, the threat made by him was as a matter of law sufficient to set aside the election.
During the course of the regional director’s investigation J-Wood produced a union newsletter, which appeared after the election, describing Ross, along with other employees, as having served on the “plant committee.”2 The company proffered no other evidence bearing on Ross’ agency status, and no reason why, if any such evidence might exist, it could not be obtained by investigative techniques rather than in an adversarial hearing.
The regional director did investigate the allegation that Ross was a union agent. In his Report on Objections, he observed:
With respect to Ross, the Employer relies upon an article which appeared in a publication of the Petitioner [union] after the election, which listed Ross along with other employees as serving on the “plant committee.” Ross denies being a member of any union organizing committee during the pre-election campaign. In any event, there is no evidence that the Petitioner authorized or condoned the alleged statements or that it was even aware of them. Moreover, even if the individuals to whom the statements were attributed may have been supporters of the Petitioner [union], the Board has held that even where the employee is the prime mover or principal organizer for a union, the union would not be responsible for threats made by such adherents.1 I find, therefore, that the alleged statements cannot be attributed to the Petitioner [union].2
*3211 American Enka Co., 231 NLRB 1335, 1343; Bufkor-Pelzner Division Inc., 197 NLRB 950; Bronze Alloys Company, 120 NLRB 682.
2 In view of the aforesaid cited cases (footnote 1), I deem it unnecessary to decide whether Ross was in fact a member of the in-plant organizing committee prior to the election since, assuming arguendo, that he was, my findpng] that the remarks alleged to have been made by Ross cannot be attributed to the Petitioner [union] would be the same.
App. at 21a.
It is clear beyond question, therefore, that the regional director assumed for purposes of his Report on Objections that Ross may have been a member of the in-plant organizing committee. Thus a hearing addressed to that factual issue would add nothing relevant to our decision.
Judge Rosenn observes that “[cjoncededly, in the instant case J-Wood proffered no evidence to the regional director concerning the role of the plant committee or its relationship to the Union.” 720 F.2d at 315. He contends, however, that the employer raised a substantial material factual issue as to the agency status of the members of the in-plant committee. To the contrary, the employer never actually contended during the investigation that Ross was a union agent. Its basic position, noted above, was that his agency status was irrelevant. The most that was proffered in the footnote to the September 10, 1980 position paper was that it was prepared to prove at a hearing that Ross was “known throughout the plant as a union agent." Ross’ reputation, not the fact of agency, was all that was tendered. In view of this insufficient proffer of evidence, it was not an abuse of discretion for the regional director to decline to hold a hearing.
Disregarding the plain language of the footnote reference to Ross’ reputation in the plant, Judge Rosenn proceeds to construct a sophistical argument as to why the employer should be excused from making some sort of factual showing of the fact of agency. His opinion notes that the employer has little time, that discovery is limited, and that the National Labor Relations Act inhibits interrogation of employees. 720 F.2d at 315-16. These factors do not excuse the employer’s failure to proffer evidence of the fact of agency. Moreover, they have little relevance to these proceedings. J-Wood’s position paper represented that it would be prepared at a hearing to prove its allegations about Ross’ reputation as a union agent. Obviously the employer had timely knowledge, without the necessity for interrogation or discovery, of the fact of that reputation. In addition, any inhibition on interrogation is irrelevant when the issue is union agency status, since inquiry can be directed, with no danger of violating the National Labor Relations Act, to non-employee union officials for that purpose.
Patently the news item in the Union Leader, quoted in the margin, does not raise a fact issue as to Ross’ agency status. Patently the vague footnote reference to Ross’ reputation in the plant fails to point to specific events or specific evidence which might establish such status, and fails to tender any witness even to his reputation. Considering that it was J-Wood’s basic position that Ross’ agency status was irrelevant, and that the vague, offhand footnote reference to Ross’ reputation as a union agent refrained even from proffering proof that he was in fact an agent, we cannot, applying the scope of review to which ARA confines us, hold that the regional director was required to hold an evidentiary hearing on agency status. There was no abuse of discretion in taking J-Wood at its word that agency status was not relevant. The vague footnote never fairly tendered Ross’ agency status as a factual issue.
That the question of the need for an evidentiary hearing on Ross’ agency status was never fairly tendered to the regional director is confirmed by J-Wood’s Exception to the Regional Director’s Report. The Exception states in conclusory language:
3. J-Wood excepts to the Regional Director’s failure to grant a hearing pursuant to 29 C.F.R. § 102.69(d).
The grounds for this exception are set forth in the accompanying brief.
App. at 28-29a. The accompanying brief refers to Ross only once:
*322After lunch, in the presence of this J-Wood witness [Dobson], Mr. Eckley told William Ross, another Union organizer, what he had said to the witness before lunch. Mr. Ross agreed with Mr. Eckley, stating that if the witness failed to sign a card, he would be out of a job.
App. at 33a. The newspaper clipping on which J-Wood relies states that prior to the election, employees solicited union authorization cards. These were used, when the union had a majority of signatures in the bargaining unit, to petition for a Board supervised election. J-Wood’s exception, therefore, appears to refer to conduct by Ross in the period when employees were soliciting cards for the purpose of petitioning for an election. There is no suggestion in the brief in support of the Exception that Ross was at that time anything but an in-plant organizer, a fact that the regional director assumed. Moreover J-Wood in that brief reconfirmed its basic position that Ross’ agency status is irrelevant, arguing:
The Regional Director found no directf] proof that ... [Mr.] Ross [was an] agent of the Union. J-Wood submits, however, ... where the election was decided by only one vote, it is entirely proper to set aside the election even without direct proof of union agency.
App. at 37a. Nowhere in that brief did J-Wood urge that it lacked time to establish Ross’ agency status, that it needed discovery for that purpose, or that the National Labor Relations Act inhibited the development of the facts. Instead, again in a footnote, it reasserted its position that “J-Wood will be prepared to prove at a hearing that ... [Mr.] Ross [was], in fact, known throughout the plant as [an agent] of the Union.” App. at 38a. Thus the exception tendered no more than evidence, from unnamed sources, apparently already available to J-Wood, of Ross’ in-plant reputation. The conversation between employee Dobson and employee Wood apparently took place during the card soliciting stage, and no details ever had been tendered to the regional director about the time when Ross’ reputation as a union agent arose, or about the facts Upon which that reputation was based. The union newspaper certainly did not contribute to that reputation in any relevant period since it was published after the election. Nowhere in the Exceptions or in the brief in support thereof does J-Wood urge explicitly that there is a material fact issue as to Ross’ agency status. Nowhere does J-Wood refer to any lines of inquiry which it suggested to the regional director bearing on that status other than the carefully chosen and deliberately vague reference to his in-plant reputation.
The regional director and the Board both assumed, arguendo, that Ross was a member of the in-plant organizing committee, even though he denied it. The newspaper clipping suggests no more than this. Thus on the issue of Ross’ agency status our inquiry narrows down to the question whether, when all that was presented to the regional director was a throwaway line in a footnote in a brief mentioning his in-plant reputation, which carefully omitted any explicit reference to the fact of agency, the regional director and the Board abused their respective discretions in failing to hold or order a hearing on that issue. Since J-Wood’s basic position was that agency status was irrelevant, since no explicit request for an evidentiary hearing on that status was made at either level of the agency proceeding, and since nothing but a vague mention of reputation, rather than fact of agency, ever surfaced, no abuse of discretion occurred. Indeed, on the record before us no occasion was ever fairly presented for the exercise of discretion as to an evidentiary hearing on Ross’ agency status.
Because J-Wood presented no basis for the exercise of the regional director’s discretion to hold an evidentiary hearing on Ross’ agency status, the basic premise of Judge Rosenn’s opinion is entirely unsupportable. His opinion, proceeding from the unsupportable premise that such a hearing was required, concludes in Part III B, that a hearing was also required to determine the effect of Ross’ remarks upon Dobson and other employees. Judge Hunter does not *323rely even on that unsupportable premise. But both Judge Rosenn and Judge Hunter ignore the scope of review mandated by the ARA decision on this second issue as well.
There can be no material dispute over whether the statements attributed to Ross were actually made to Dobson, because the regional director proceeded on the assumption that they were.3 The regional director discounted their potential significance, however, reasoning:
In the first place, I note that the conduct did not involve any physical violence or relate to matters within the Petitioner’s [union’s] control. With respect to similar statements, the Board has held that employees could reasonably be expected to evaluate such statements as non-coercive and not as threats. I further note that no evidence was proffered or disclosed by the investigation to show that any employee had any reason to believe that the Employer favored the Petitioner [union] and would be disposed to discharge any employee for voting against the Petitioner....
App. at 22a (footnotes omitted) (emphasis in original). The last sentence in the quoted language shows the regional director’s keen appreciation of the precise remarks attributed to Ross. Ross is alleged to have told Dobson that if he did not sign a card he would be out of a job. The cards were solicited before the representation election, probably for the purpose of obtaining an election. The regional director notes, quite correctly, that such a threat, if it was in fact made, would be a reason for a union opponent voting against the union rather than in its favor.
Since the regional director assumed, ar-guendo, that Ross made the threat attributed to him, I search both opinions in vain for the disputed issue of material fact to which the evidentiary hearing which they order will be addressed. Certainly the regional director is correct that no evidence
was proffered or disclosed in the investigation suggesting that J-Wood would retaliate against an employee who refused to sign an authorization card. The witness Dobson was interviewed. What could he be asked in an evidentiary hearing that he was not asked in the course of the investigation? Dobson did not say that he voted for the union out of fear of retaliation. He did not even say that he disclosed his conversation with Ross to any other employee. Judge Rosenn urges that “there is no way to judge the effect of a threat without inquiring into the circumstances surrounding it.” 720 F.2d at 317 n. 12. What additional circumstances are referred to? The regional director assumed that employee Ross, in the presence of employee Eckley, told employee Dobson that if he did not sign a union- card he would be out of a job. The only remaining question which could be asked is how Dobson himself voted. Perhaps the judges in the majority mean to suggest that in every close election the regional director must examine how specific employees voted. The law, fortunately, is otherwise. Board elections are secret ballot elections. 29 U.S.C. § 159(c)(1) (1976). See NLRB v. A.J. Tower Co., 329 U.S. 324, 331-32, 67 S.Ct. 324, 328-29,91 L.Ed. 322 (1946). Thus the only information, even arguably relevant, in addition to the facts which the regional director assumed, could not lawfully be disclosed.
Thus, discussion in the majority opinions of the need for an evidentiary hearing as to how the statements attributed to Ross may have influenced the election is in reality a subterfuge. Neither Judge in the majority appears ready to say that the Board erred as a matter of law in approving the regional director’s conclusion that such a threat would be more likely to produce a vote against than in favor of the union. That conclusion is quite clearly within the range of discretion entrusted to the Board under *324section 9 of the Act. A vote against the union would not affect the outcome. It is virtually certain that at a hearing the regional director will conclude that the Ross statements were made, but that they did not affect the outcome. But delay in Board certification means delay in the obligation to bargain collectively. Thus the remand for a meaningless hearing is as useful for J-Wood as if the Judges in the majority had held that the Board erred as a matter of law. Before certain panels of this court, any route to the result that an employer need not bargain collectively appears to be satisfactory.
The regional director did not abuse his discretion in preparing his Report on Objections on the basis of an investigation, without an evidentiary hearing as to Ross’ status as a union agent, and without an evi-dentiary hearing as to whether the statements attributed to Ross may have influenced employee freedom of choice. The Board did not abuse its discretion in declining to remand for an evidentiary hearing on those issues. The majority opinions are inconsistent with the abuse of discretion standard of review, and an end run around the controlling precedent in this court. As Judge Adams wrote in ARA Services:
Although hearings frequently serve a useful purpose, requiring a hearing regardless of the factual setting promotes undue delay in the administrative process at the expense of the freedom of choice of the workers.... Given the sparseness of the factual challenge and the fact that an independent investigation disclosed nothing to augment the unverified statement of one employee, I decline to join an endeavor that would make this already cumbersome process any more protracted.
ARA Services, Inc., 717 F.2d at 70. I would enforce the Board’s order.
. In ARA Services, Inc. there is no opinion of the court because Judge Adams concurred in the judgment. For present purposes, however, there is no substantive difference between the ARA plurality opinion and Judge Adams’ concurring opinion. See ARA Services, Inc., 717 F.2d at 69 (Adams, J., concurring) (“[u]nless procedural preference rises to the level of constitutional imperative, however, the decision whether to utilize an investigation or to employ a full hearing is best left to the discretion of the NLRB”).
. The publication, Labor Unity, reported the outcome of the election. That short news item also reported:
Wood employees contacted the union in May, and a majority quickly signed union cards....
Serving on the plant committee along with [employee] Belk were Harvey Dobson, Larry George, Willard Ham, Robert Kalbel, George Leacy, Michael Ross, William Ross, Ronald Scutt, and David Smoker. Union staff involved in the drive included Vice Pres. Bruce Dunion, ACTWU Reg. Dir. Joseph Coponi, Asst, to Reg. Dir. Tony Sedor, and Int’l Reps. George Mikula, Romeo Esposito, and Thomas Hummel.
App. at 47a. Thus, the news item itself made a clear distinction between the acknowledged union agents and the J-Wood employees who had circulated union authorization cards. While the newsletter reported that Ross served on the in-plant committee, it offered no probative evidence of the relationship between the in-plant committee and the union. Even under the incorrect standard of review applied by Judges Rosenn and Hunter, therefore, the newspaper item would be insufficient to create a material issue of fact as to Ross’ agency status. Rather, it would create a material issue of fact only as to Ross’ membership on the in-plant committee.
Judge Rosenn is simply wrong in his assertion that the newspaper clipping is a probative item of evidence of Ross’ agency status. ' 720 F.2d at 315.
. The Report on Objections states:
Assuming, arguendo, that the statements were made as testified to by the two witnesses [Ely and Dobson] in support of the objections, I find that such statements cannot be said to have created such an atmosphere of fear or of violence as to have impaired the employees’ freedom of choice in the election.
App. at 21-22.