206 F.3d 752 (7th Cir. 2000)
National Labor Relations Board,    Petitioner,v.Somerville1 Construction Company,    Respondent.
No. 99-1838
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 19, 2000Decided March 8, 2000

Petition for Summary Enforcement of an Order  of the National Labor Relations Board  25-CA-25276 Before Bauer, Cudahy, and Evans, Circuit Judges.
Bauer, Circuit Judge.


1
An administrative law  judge determined that Somerville Construction  Company ("Somerville") violated section 8(a)(5)  of the National Labor Relations Act, 29 U.S.C.  sec. 158(a)(5), by refusing to abide by a  collective bargaining agreement. Hearing no  objections from Somerville, the National Labor  Relations Board entered an order adopting the  ALJ's decision with slight modifications.  Although it never filed any exceptions to the  ALJ's ruling, Somerville refused to comply with  the order. The NLRB now petitions this court for  summary enforcement of its order and Somerville  has filed an opposition to the petition.  Somerville's arguments are too late; we grant the  petition and summarily enforce the NLRB's order.

I.  Background

2
Somerville is a sole proprietorship owned by  Homer Somerville2 that operates as a masonry  contractor. Somerville employs approximately  twenty workers and has its offices in  Indianapolis, Indiana. During mid-summer 1995,  the Trademark Construction Company solicited  Somerville to bid for masonry work at a  construction site in Portage, Indiana. After  collecting bids, Trademark awarded the work to  Somerville and the company began the project late  that summer. Somerville had been on the job 30 to  45 days when two representatives of the  International Union of Bricklayers & Allied  Craftsmen Local No. 4 of Indiana and Kentucky,  Merrillville Chapter visited the Portage  construction site and realized that the people  performing the masonry work were not Union  members. The Union's representatives then  requested a meeting with officials of Trademark  and Somerville.


3
On October 31, 1995, Homer Somerville met with  Union representatives and an officer from  Trademark. During the meeting, the Union's  representatives said that they wanted Somerville  to sign a collective bargaining agreement ("CBA")  that the Union had with the Indiana Mason  Contractors Statewide Association. Although he  appears to have done so begrudgingly, Homer  Somerville eventually signed a Memorandum of  Agreement on behalf of his company in which the  company "recognize[d] the Union as the sole and  exclusive collective bargaining representative  for and on behalf of the employees of  [Somerville] now or hereinafter employed within  the territorial or occupational jurisdictions of  the Union." The Memorandum further stated:


4
The parties do hereby adopt the latest Agreement,  and all approved amendments thereto, between the  Union and the Indiana Statewide Association, and  agree to be bound by all of the terms and  conditions thereof for the duration of such  Agreement and for the period of any subsequent  extensions including any amendments which may be  subsequently made and any subsequent Agreements.


5
The Union's Field Representative, Dale Johnsen,  signed the Memorandum on the Union's behalf.  Additionally, Homer Somerville and Johnsen also  executed a document which memorialized  Somerville's assent to participate in the  Association's fringe benefits and apprenticeship  training program.


6
Even though Homer Somerville signed the  Memorandum, Somerville later refused to recognize  the Union or honor the CBA between the Union and  the Association. In response, the Union  complained to the NLRB and the Regional Director  in Indianapolis issued a Complaint and Notice of  Hearing charging Somerville with unfair labor  practices in violation of the National Labor  Relations Act. Specifically, the Regional  Director alleged that Somerville violated section  8(a)(5) of the NLRA, 29 U.S.C. sec. 158(a)(5), by  refusing to abide by the CBA to which it became  bound when Homer Somerville executed the  Memorandum of Agreement. Somerville filed an  Answer to the Complaint and a hearing was held  before an NLRB administrative law judge.  Following the hearing, the ALJ issued a decision  finding that Somerville had violated the NLRA as  charged and recommended that the NLRB enter an  appropriate remedial order.


7
The NLRB's General Counsel filed limited  exceptions to the ALJ's finding and  recommendation, but Somerville did not file any  exceptions to the adverse ruling. After  considering the General Counsel's exceptions, the  NLRB issued an order adopting the ALJ's findings  and recommendations with minor modifications.  Since Somerville still refused to bargain with  the Union or honor the CBA, the NLRB applied for  summary enforcement of its order with this court.  Somerville then filed an opposition to the NLRB's  petition.

II.  Analysis

8
Somerville first challenges the NLRB's order on  the basis that the NLRB never had subject matter  jurisdiction over this case. The ALJ found  subject matter jurisdiction because Somerville  "annually performs services in excess of  $50,0003 in States other than Indiana."  Somerville Constr. Co., 327 NLRB No. 99, slip op.  at 2, 1999 WL 64716 at *2 (Jan. 29, 1999). Based  on this finding, the ALJ concluded that  Somerville was "an employer engaged in interstate  commerce within the meaning of Section 2(2), (6),  and (7) of the Act." Id.


9
Although Somerville never presented this  argument to the NLRB, it now insists that the  ALJ's jurisdictional conclusion is flawed because  there were no facts in evidence to demonstrate  that it annually engages in more than $50,000 in  business outside the state of Indiana. To support  this contention, Somerville points us to Homer  Somerville's following testimony:


10
Q:  All right. And these employees are engaged in  work in the State of Indiana are they not?


11
A:  Yes.


12
Q:  And they are, in fact they are all engaged in  Bricklaying or Masonry work in the State of  Indiana?


13
A:  Yes.


14
Q:  And they have been engaged in - - -


15
A:  Now sometimes we have gone out of State.


16
Q:  What percentage of your work would you say  has been out of State?


17
A:  Very small, real small, I doubt if it is one  (1%) percent.


18
Q:  All right. So ninety-nine (99%) percent of  the time you have been working in Indiana?


19
A:  Right.


20
Q:  And your employees have been working in  Indiana?


21
A:  Right.


22
While Somerville is correct that this testimony  alone might not form an adequate basis for  subject matter jurisdiction, these are not the  only facts in the record that relate to the  NLRB's jurisdiction. Specifically, paragraph 2(b)  of the NLRB's Complaint and Notice of Hearing  made the factual allegation that "[d]uring the  twelve-month period ending March 31, 1997,  [Somerville], in conducting its business  operations . . . performed services valued in  excess of $50,000.00 in states other than the  State of Indiana." In its Answer to this  allegation, Somerville stated, "Respondent admits  the allegations contained in paragraph 2(b) of  the Board's Complaint." And, most importantly,  the ALJ expressly noted and relied on  Somerville's admission in finding that subject  matter jurisdiction was proper. See Somerville  Constr. Co., 327 NLRB No. 99, slip op. at 2, 1999  WL 64716 at *2 ("The Respondent admits and I  conclude that he is an employer engaged in  interstate commerce within the meaning of Section  2(2), (6), and (7) of the Act.").


23
Section 10(e) of the NLRA provides in pertinent  part:


24
No objection that has not been urged before the  Board, its member, agent, or agency, shall be  considered by the court, unless failure to urge  such objection shall be excused because of  extraordinary circumstances.


25
29 U.S.C. sec. 160(e). Based on this provision,  we have consistently held that "a party which  fails to raise an exception before the Board is  jurisdictionally barred from raising that  exception in an enforcement proceeding before the  court of appeals." NLRB v. Howard Immel, Inc.,  102 F.3d 948, 951 (7th Cir. 1996); NLRB v. Alwin  Mfg. Co., Inc., 78 F.3d 1159, 1162 (7th Cir.  1996).


26
However, because a party never waives the right  to contest subject matter jurisdiction, the  NLRB's assertion of jurisdiction over a  particular case requires a slightly different  analysis. See Polynesian Cultural Center, Inc. v.  NLRB, 582 F.2d 467, 472 (9th Cir. 1978).  Therefore, when considering challenges to subject  matter jurisdiction not presented to the NLRB, courts uniformly hold that while "the Board's  statutory jurisdiction may be raised at any time,  the facts upon which the Board determines it has  jurisdiction may be challenged only upon timely  exception." NLRB v. Konig, 79 F.3d 354, 360 (3d  Cir. 1996); NLRB v. International Health Care,  Inc., 898 F.2d 501, 506-07 (6th Cir. 1990); The  Red Cross Drug Co. v. NLRB, 419 F.2d 1245, 1248  (7th Cir. 1969); NLRB v. Ferraro's Bakery, Inc.,  353 F.2d 366, 369 (6th Cir. 1965); NLRB v. Peyton  Fritton Stores, Inc., 336 F.2d 769, 770 (10th  Cir. 1964) (per curiam); NLRB v. Community Motor  Bus Co., Inc., 335 F.2d 120, 121 (4th Cir. 1964);  NLRB v. Associated Musicians of Greater New York,  Local 802, 226 F.2d 900, 907 (2d Cir. 1955).


27
In this case, Somerville admitted in its Answer  that "[d]uring the twelve-month period ending  March 31, 1997, [Somerville], in conducting its  business operations . . . performed services  valued in excess of $50,000.00 in states other  than the State of Indiana." Because the ALJ  clearly relied upon this specific admission and  these particular facts when determining whether  NLRB jurisdiction was proper, Somerville could  only challenge this finding by filing an  exception to the ALJ's decision with the NLRB.  Somerville, however, failed to file any  exceptions with the NLRB. Since Somerville never  contested these facts before the NLRB, Somerville  is now barred from disputing the accuracy of  these factual findings. Because it is now unable  to alter the factual basis for the ALJ's  conclusion, Somerville cannot escape the NLRB's  jurisdiction. Additionally, Somerville does not  allege the existence of any "extraordinary  circumstances" that would allow us to consider  this argument for the first time. We therefore  reject Somerville's contention that the NLRB  lacked jurisdiction.


28
Somerville also contests the sufficiency of the  evidence supporting the ALJ's conclusion that  Homer Somerville agreed to bind his company to  the CBA when he signed the Memorandum of  Agreement. However, like the jurisdictional  argument, Somerville never filed any exceptions  with the NLRB concerning the ALJ's finding on  this point. Because Somerville fails to identify  any "extraordinary circumstances" that caused its  omission, this argument is clearly barred by  section 10(e) of the NLRA, 29 U.S.C. sec. 160(e).  See Howard Immel, Inc., 102 F.3d at 951; NLRB v.  Dominick's Finer Foods, Inc., 28 F.3d 678, 685  (7th Cir. 1994).

III. Conclusion

29
Because Somerville never presented its arguments  to the NLRB, it is barred from making them for  the first time in this court. We therefore grant  the NLRB's petition and summarily enforce the  NLRB's order.



Notes:


1
 In its brief to this court and its reported  decision on this case, the NLRB spells the name  "Sommerville" with two m's. In contrast, the  company and its owner, Homer Somerville, spell  "Somerville" with only one m. We presume that Mr.  Somerville and his attorneys spell his name  correctly.


2
 To prevent any possible confusion between the  individual Homer Somerville and the business  entity Somerville Construction Company, we will  refer to the company as "Somerville" and will  always refer to the individual Homer Somerville  by using his entire name.


3
 The $50,000 jurisdictional threshold is a limit  imposed by NLRB rule rather than a congressional  mandate found in the NLRA. See Blankenship and  Assocs. v. NLRB, 999 F.2d 248, 250 (7th Cir.  1993) ("the Board has adopted a rule that it will  not assert jurisdiction over nonretail  enterprises . . . unless they have annual sales  of at least $50,000 to firms engaged in  interstate commerce"); NLRB v. George J. Roberts  & Sons, Inc., 451 F.2d 941, 944 (2d Cir. 1971)  ("the Board has, for practical purposes,  restricted its jurisdiction, in the case of  nonretail establishments, to those enterprises  which have an interstate inflow of materials in  excess of $50,000 annually.").


