Employees of Van Leer Containers, Inc. (Van Leer) voted to have the United Steelworkers of America, AFL-CIO (Union) serve as their bargaining representative. Van Leer refused to bargain with the Union, claiming improprieties in the election process. The National Labor Relations Board (Board) overruled Van Leer’s objections and found that Van Leer had violated sections 8(a)(1) and (5) of the National Labor Relations Act (Act) 1 by refusing to bargain with the Union. Van Leer filed a petition with this court to obtain review of the Board’s decision. The Board cross-petitioned for enforcement of its order.
I. BACKGROUND
Inland Steel Container Company (Inland) operated a steel drum manufacturing plant in New Orleans, Louisiana. Employees at the New Orleans plant were represented by the Union. In November 1982, Inland decided to close its New Orleans plant, and informed the employees and the Union of its decision. On December 20,1982, Inland exercised an option to purchase a building and land in Canton, Mississippi, for the purpose of relocating its steel drum operations. In discussions with the Union, Inland maintained that the New Orleans employees had no contractual transfer rights entitling them to jobs in Canton. On May 17, 1983, the Union filed an unfair labor practice charge with the Board. The Union alleged that Inland’s relocation of the New Orleans plant without the Union’s consent constituted an unlawful refusal to bargain, resulting in the New Orleans employees permanently losing their jobs. The Union claimed that, by its actions, Inland had violated sections 8(a)(1), (3), (5), and 8(d) of the Act.
*781 Despite the pending unfair labor practice proceeding, the New Orleans plant closed in September 1983 and was relocated to Canton in October 1983. Inland later sold its Canton container operations to Van Leer. On October 10,1984, the Union filed a petition for an election at Van Leer’s Canton facility.
Hubert Coker, an International Representative of the Union, led the organizing activity at Van Leer’s Canton plant on behalf of the Union. At an organizational meeting, Coker allegedly referred to the Union’s pending unfair labor practice charge against Inland, mentioning the possibility of New Orleans workers taking the Canton employees’ jobs. The pending New Orleans litigation also received extensive coverage in the local Canton press. Four days before the election, Coker mailed a letter to eligible voters, outlining the Union’s view on the consequences of the upcoming election. 2
On election day, Coker spoke to an employee, Jamie Squires, on her way to the polls to vote. According to Squires’s version, Coker told her and her companions to vote for the Union. Squires replied that “if you vote for the Union, you will be on welfare.” Coker retorted that if Squires voted for the Union, she would indeed be on welfare, because John Lane, a Van Leer supervisor, would return to Chicago, leaving Squires all alone. (Coker apparently believed that there was a personal relationship between Squires and Lane.) Squires proceeded to the polling area, where she voted. Upon leaving, Squires again passed Coker and approached him. Squires asked Coker to repeat what he had said earlier. Coker told her that she was going to need help, because she wouldn’t have anything when Lane returned to Chicago. Squires then called Coker a few profane names, and Coker returned the courtesy. Other employees witnessed the exchange between Coker and Squires.
Coker engaged in further activity around the polls on election day. That day, the Union had prepared and distributed a handbill to employees that listed the names of fifty-six of the eighty-nine eligible voters and identified them as having “pledged their support” to the Union. The handbill claimed that the Union had a large majority and urged employees to “get on the bandwagon.” On the afternoon of election day, Coker stopped voter Jessie Williams and gave him a cap bearing the Union’s insignia. Coker reportedly told Williams to put the cap on, but Williams declined. Coker urged Williams to wear the cap, emphasizing that Williams’s name was listed on the handbill, demonstrating his support for the Union. Williams claimed that he did not put his name on the handbill, to which Coker replied that it was already on the handbill.
In addition to Coker distributing caps bearing the Union’s insignia on election day, Union observers wore the Union hats at the opening of the polls and during the voting session. One Union observer placed a Union cap on the table used to check in voters and left the hat there for the duration of the election. The Board agent conducting the election did not forbid Union observers to display Union insignia in the voting area during the election.
*782 The Van Leer employees voted fifty-two to thirty-four in favor of the Union as their bargaining representative.
On December 11, 1984, Van Leer filed objections to conduct affecting the outcome of the election. First, Van Leer claimed that the Union had threatened employees with retaliation and/or loss of their jobs if the employees did not vote for the Union. Second, Van Leer alleged that the Union threatened employees that, unless the Union became the Canton employees’ bargaining representative, the Union would attempt to secure the Canton jobs for the New Orleans employees. Van Leer also claims that the Board acted in an arbitrary and capricious manner by processing the Union’s election petition and conducting the election while the unfair labor practice charge against Inland, the plant’s former owner, was pending. Finally, Van Leer charged that the Union destroyed the laboratory conditions of the election by displaying Union insignia in the polling place and by other impermissible acts on election day.
The Board’s Regional Director conducted an ex parte investigation of Van Leer’s objections and issued a report on January 16, 1985. Concluding that Van Leer raised no substantial or material issues affecting the results of the election, the Regional Director recommended that the Board overrule all the objections and certify the Union.
On June 21, 1985, the Board issued its decision. A majority of the three-member panel adopted the Regional Director’s findings and recommendation and certified the Union as bargaining representative for the Van Leer employees. One Board member dissented, stating that she would direct a hearing on Van Leer’s objection to Union statements regarding the Canton employees’ loss of jobs to New Orleans workers if the Union did not win the December 4 election.
Van Leer subsequently refused to bargain with the Union. The Union then filed an unfair labor practice charge against Van Leer. In responding to the General Counsel’s complaint, Van Leer claimed that the Union’s certification was invalid because of the improper election and because no hearing was held on Van Leer’s election objections. The General Counsel moved for summary judgment, claiming that the issues were or could have been litigated in the prior certification proceeding. A majority of the panel granted the motion, with one member again dissenting on the grounds that Van Leer was entitled to a hearing on its second objection. Van Leer seeks review of the Board’s order requiring it to bargain with the Union. 3 The Board cross-petitioned for enforcement of its order.
II. ANALYSIS
A. The Board’s Review of the Evidence
Van Leer contends that the Board improperly failed to review the entire record and that therefore we should deny enforcement of the Board’s order. This court has recognized that the Board should not adopt the findings and recommendations of the Regional Director without reviewing the affidavits upon which the Regional Director relied.
Prairie Tank Southern, Inc. v. NLRB,
In this case, the Board had before it all the affidavits proffered by Van Leer. The affidavits of Coker and other employee witnesses that were prepared by the Regional Director in the course of his investigation, however, were not forwarded to the Board. According to Board regulations, witness statements are not included as part of the record. 29 C.F.R. § 102.69(g)(1)(h)
*783
(1987) (“the record shall consist of ... any documentary evidence,
excluding statements of witnesses,
relied upon by the regional director in his decision or report”) (emphasis added). An objecting party may append to its exceptions to the Regional Director’s decision copies of affidavits “it has timely submitted to the regional director and which were not included in the report or decision.”
Id.
§ 102.69(g)(3). Thus, parties are on notice that the affidavits generated by the Regional Director’s investigation are not part of the record, and that the objecting party has the responsibility to file such affidavits with the Board.
L.C. Cassidy & Son, Inc. v. NLRB,
While we agree that the company may have been uncertain as to how it could file with the Board affidavits that it may not have had access to, it should have raised its concern before the Board at its first opportunity, in other words in the underlying certification proceeding, rather than waiting until a subsequent stage, i.e. the unfair labor practice proceeding. See, e.g., NLRB v. Affiliated Midwest Hospital, Inc.,789 F.2d 524 , 533 (7th Cir.1986). Because it declined to do so, we conclude that the issue has been waived. Id.
Browning-Ferris,
*784 B. The Board’s Refusal to Grant an Evi-dentiary Hearing
Van Leer claims that the Board erred in overruling Van Leer’s objections to the election. Alternatively, Van Leer asserts that the Board should have at least granted an evidentiary hearing on the objections. Appellate review of the Board’s decision to certify a collective bargaining representative following an election is extremely limited.
Browning-Ferris,
A party challenging a representation election is entitled to an evidentiary hearing where its objections raise substantial and material issues of fact and the objecting party proffers evidence that establishes a prima facie case for setting aside an election.
Browning-Ferris,
1. Union’s Alleged Election Day Misconduct
The Regional Director concluded that Coker did not threaten or coerce Squires in his conversation with her on election day. This court has held that “the Board may not rely on an ex parte investigation to rebut substantial allegations that, if true, might warrant setting aside the election.”
NLRB v. Howard Johnson Motor Lodge,
The Regional Director also noted that the comments allegedly made by Coker were de minimis and isolated. A party seeking to overturn an election because of coercive conduct must show that “ ‘the coercive conduct so influenced potential voters that free choice was impossible.’ ”
Chicago Marine Containers,
We believe that the Regional Director properly found that the conversation between Coker and Squires had little coercive effect on the general atmosphere of the election. Unlike the cases involving threats of retaliation that Van Leer has cited, the evidence here does not establish interference with employee free will such that the election should be overturned.
See, e.g., EDS-IDAB, Inc. v. NLRB,
The Regional Director and the Board also concluded that the Union’s handbill and Coker’s request for an employee to wear a Union cap were not coercive or objectionable. Van Leer does not contest the Board’s determination that even if the handbill misrepresented the level of employee support, such a misrepresentation would not warrant overturning the election. Rather, Van Leer asserts that the handbill and Coker’s use of it to encourage an employee to wear a Union cap had a coercive impact on employees.
Van Leer cites cases holding that a union’s polling of employees regarding their union sentiments, and threats to employees who fail to publicly demonstrate their support for a union, are coercive and may warrant a hearing. Here, however, all employees listed on the handbill signed an authorization allowing the Union to use their names. Van Leer does not present any evidence that any employee who refused to accept or wear a Union cap was threatened in any way. The Board, adopting the Regional Director’s report, found that the statements attributed to Coker were neither coercive nor objectionable. The Regional Director specifically noted that Coker’s encouragement failed to persuade the employee to wear the cap. Van Leer does not dispute that merely encouraging employees to express their support for a union by wearing caps on election day is not objectionable conduct.
See R.L. White Co., Inc.,
2. Union’s Alleged Threats of Job Loss
The Board concluded that the Union did not threaten Canton employees with the loss of their jobs if the Union lost the election. The Regional Director found that Van Leer clearly failed to present evidence that the Union threatened employees with job loss. We disagree.
Van Leer submitted employee affidavits that stated that at a Union organizational meeting, Coker told the employees that if the Union lost the election, the Union would support the New Orleans workers, with the possibility that the Canton jobs would go to the New Orleans members. According to the Regional Director’s report, Coker denied suggesting that the out
*786
come of the election would have an effect upon the Canton employees’ jobs. Instead, Coker claimed that Van Leer, not the Union, raised the issue of Inland’s pending unfair labor practice proceeding. Coker claimed that his November 30 letter was a response to Van Leer’s allegations and that the letter was designed to merely describe the Union’s representational role. Rather than assuming the truth of the employees’ statements, the Regional Director seemed to accept Coker’s version of the facts.
5
This directly controverts the accepted rule that “the Board may not rely on an ex parte investigation to rebut substantial allegations.”
NLRB v. Howard Johnson Motor Lodge,
Before the Board will grant an evidentia-ry hearing, a party must show not only that a substantial and material factual issue is in dispute, but that a prima facie case for setting aside the election exists. Van Leer claims that the Union’s alleged threats of economic reprisal present a pri-ma facie case for overturning the election.
In
A. Rebello Excavating Contractors,
Similarly, in
United Broadcasting Co. of New York, Inc.,
the kind of economic reprisal which an employee may reasonably believe is within a union’s power. Because the determination of whether certain conduct warrants setting aside an election does not turn on the election results, but rather on its likelihood to coerce prospective voters to cast their ballots in a particular manner, it appears that the statements attributed to [the union] herein fall squarely within the proscription. The coerciveness of a blacklist derives from the possible foreclosure of the opportunity to earn a living, and the cited threats directly tie *787 this consequence to [the employee’s] vote.
Id. at 404 (footnote omitted).
Finally, in
Willey’s Express, Inc.,
As the above cases teach, the Board has considered threats of future job loss sufficient violations to warrant setting aside an election. The Board must determine whether the statements reasonably tended to coerce employees so that their free choice was impeded.
See Affiliated Midwest Hospital, Inc. v. NLRB,
The Regional Director maintained, and the Board agreed, that Coker’s letter merely pointed out the Union’s representational duty owed to the former Inland employees in New Orleans. Nevertheless, the Board cannot assume that the employees were aware of these fine distinctions. In Wil-ley’s Express, the Board found that it was inevitable for the employees to infer that the only way to keep their insurance coverage was to vote for the union. Likewise, employees here may have deduced that to retain their jobs, their only choice was to opt for Union representation. Thus, Van Leer has presented a prima facie case that the Union’s alleged threats of job loss may have reasonably impaired the employees’ free choice in the election. 6 Because substantial and material factual issues are in dispute, and Van Leer has proffered a pri-ma facie case of coercion that would warrant setting aside the election, Van Leer is entitled to an evidentiary hearing on Objection 2.
3. Timing of the Election
Van Leer also objects to the Board’s processing of the election petition while the unfair labor practice proceeding against Inland was pending. Van Leer claims that this was arbitrary and capricious conduct by the Board, creating an atmosphere of fear and confusion that prevented a fair and free election. Van Leer, however, neglects to discuss the stipulation that it entered into with the Union prior to the election. The stipulation set an election date, and by signing the stipulation the parties expressly waived a preelection hearing.
*788
Cf. State Bank of India v. NLRB,
Thus, Van Leer’s objection is an attempt to litigate a matter that the company could have raised prior to the election. Van Leer does not contend that it was unaware of Inland’s pending unfair labor practice proceeding at the time it entered into the stipulation. Therefore, by entering into the preelection stipulation with the Union, Van Leer voluntarily waived its right to litigate this issue.
See NLRB v. Speedway Petroleum, Division of Emro Marketing Co.,
f Union Insignia in the Polling Place
Van Leer contends that the display of caps bearing the Union’s insignia in the polling area was objectionable conduct. However, the mere display of partisan insignia by observers during an election, without more, does not warrant setting aside an election.
NLRB v. IDAB, Inc.,
Van Leer insists that even though merely displaying Union insignia in the polling area may not be sufficient to overturn the election, the Board should have assessed the cumulative effect of the Union’s display of insignia and the other objectionable conduct alleged. This court recently held that a party may not use a cumulative impact argument to transform a number of insubstantial objections to an election into a serious challenge.
Browning-Ferris,
Nevertheless, we need not decide that precise issue. On appeal to this court, Van Leer argues that the Board should have considered the display of Union insignia together with
all
objectionable conduct alleged by Van Leer. In its objections filed with the Regional Director and before the Board, however, Van Leer merely asked the Board to consider the effect of the display of insignia together with the other alleged misconduct on election day,
i.e.
the conversation between Coker and Squires, and Coker’s actions in distributing Union caps. Van Leer did not argue before the Board that the cumulative impact of all four of its objections, including the threat of the Canton jobs going to New Orleans workers, warranted overturning the election. Since Van Leer chose not to raise this issue before the Board, we cannot consider it upon appeal.
See
29 U.S.C. § 160(e) (1982) (“No objection that has not been urged, before the Board, its member, agent, or agency, shall be considered by the court [of appeals], unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”);
see also Detroit Edison Co. v. NLRB,
The Union workers’ display of Union insignia in the polling area, without more, does not warrant overturning the election. Further, an evidentiary hearing on this objection is not required because there are no substantial or material facts in dispute. Finally, the Board was not required to consider the cumulative effect of the Union’s alleged election day misconduct because those objections were insubstantial.
III. CONCLUSION
Van Leer cannot complain that the record before the Board in its unfair labor practice proceeding was incomplete; Van Leer waived this issue by failing to raise it at the earlier certification proceeding. We also find that substantial evidence supported the Board’s decision to overrule Van Leer’s Objections 1, 3, and 4 without first holding an evidentiary hearing. 7 The Board erred, however, in failing to order an evidentiary hearing on Objection 2. There are substantial and material factual issues in dispute, and Van Leer has presented a prima facie ease for overturning the election. Therefore, we deny enforcement of the Board’s order, and remand this case to the Board for an evidentiary hearing on Objection 2.
Enforcement Denied.
Notes
. The Act provides:
It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.
29 U.S.C. § 158(a)(1), (5) (1982).
. The letter stated, in part:
The Federal law says the United Steelworkers of America must represent its members. Therefore, if a majority of Van Leer employees vote YES on Tuesday, December 4, then the law requires the Union to represent you in getting you a good decent contract in Canton, Mississippi.
If a majority of the employees vote NO and the Judge rules in favor of the Company [in the pending unfair labor practice proceeding against Inland], then you still have NO union in Canton, Mississippi.
If a majority of the employees vote YES on December 4, 1984, in Canton, Mississippi, and if the Judge rules in favor of the Company in the suit that is pending, then the employees will be free to start negotiations for their own contract in Canton, Mississippi.
If a majority of the employees vote NO on December 4, then we will not be legally bound by law to represent the employees in Canton, Mississippi. Therefore, our sole obligation will be to the Union members in New Orleans should the Judge rule in the Steelworkers [sic] favor.
YOU BE THE JUDGE, and I hope that you will not be misled by the Company newspaper or anyone else and will vote for yourselves on Tuesday, December 4, 1984.
. The National Labor Relations Act does not generally provide for direct review of Board certification proceedings. Once the Board enters a compulsory order, such as a bargaining order, however, a party may seek judicial review of that order. The challenging party then may also seek judicial review of the certification proceeding underlying the bargaining order. 29 U.S.C. § 159(d) (1982);
see State Bank of India v. NLRB,
. Van Leer also contends that both 28 U.S.C. § 2112(b) and the Administrative Procedure Act required the Board to review all the affidavits that the Regional Director generated in his investigation.
Van Leer argues that 28 U.S.C. § 2112(b) requires that affidavits used as the evidentiary basis of Regional Director or Board decisions must be part of the record available to this court in its review of those decisions.
See NLRB v. Klingler Elec. Corp.,
Section 556(d) of the Administrative Procedure Act provides that an order may not be issued "except on consideration of the whole record.” 5 U.S.C. § 556(d) (1982). Van Leer argues that the Board violated this section by reaching a decision without reviewing the affidavits generated by the Regional Director in conducting his investigation. Section 556, however, applies only to hearings required by section 554. Section 554 excludes proceedings involving the certification of worker representatives.
Id.
§ 554(a)(6). Although we may effectively be reviewing the Board’s decision to certify the Union following the election, this case is actually an unfair labor practice proceeding. We need not decide whether the § 554(a)(6) exception applies to this case, however, because we have before us all the evidence considered by the Regional Director in reaching his decision. Because the Regional Director claimed to have assumed the truth of Van Leer’s allegations, our review of the Board’s decision is limited to determining whether, assuming the truth of Van Leer’s evidence and allegations, substantial evidence supported the Board’s decision to overrule Van Leer’s objections.
See West Coast Liquidators,
. The Regional Director’s report quoted one employee as saying: "Coker said that without a union the people in New Orleans could come up here and get our jobs if they wanted to.” Nevertheless, the report also contained a statement from Coker that he "never said that the outcome of this election would have any effect upon the employment of the New Orleans Steelworkers.” The Regional Director concluded that it was clear that the Union merely explained its representational role, without presenting an implied threat of job loss. Assuming the truth of the employee's statement, we do not believe that it was "clear” that Coker did not subtly threaten the employees with economic reprisals if the Union did not win the election.
. Van Leer presented evidence that Coker’s alleged statements were widely disseminated to the employees both through the organizational meetings and Coker’s November 30 letter. Thus, there was a real possibility that these statements might have induced the employees to believe that their jobs would be jeopardized if the Union was not successful in the election. This showing is sufficient to entitle Van Leer to an evidentiary hearing on this objection. As one court explained:
[A]n employer is [not] required to present sufficient evidence to establish that the objections must be sustained before it can obtain an evidentiary hearing. The whole purpose for the hearing is to inquire into the allegations to determine whether they are meritorious; it makes little sense to expect the employer to prove its case ... to the Regional Director before a hearing will be granted.
NLRB v. J-Wood/A Tappan Div.,
. Van Leer presented an additional argument that we find lacks merit. Van Leer argued that the Board failed to adequately analyze the case by relying on the Regional Director’s report. The Board stated that it had reviewed the record in light of Van Leer’s objections and briefs, and had adopted the factual findings and legal reasoning of the Regional Director. After adequately reviewing the challenging party’s objections, the Board may properly adopt the Regional Director’s opinion as its own.
Borek Motor Sales, Inc.
v.
NLRB,