those limits and i think in this case it's also something it's important that it's not just invoking the court's jurisdiction there's also a case where the board is asking have applying judicial precedence but i think congress would have thought that it's extraordinary circumstance for example if an agency is acting outside of statutory i think the difference is there may be some questions of fact that go beyond the substantial evidence or maybe other issues that where there's a question of  constitution all of their power comes from the statutes that govern them suppose i disagree with you on preservation of a claim that the order was strand of argument you make that the board abused its discretion and i can't quite tell whether that freestanding argument about answers which might be preserved or sometimes you articulate it as just an argument for reversal without remain and assuming that the explanation is no good so i think even if you disagree with me about this preservation issue we could still prevail on that nd part it's of use this question and these facts where there's no high level manager involved there's no history the a point support as well but there is a separate argument of use discretion just considering this is the whole time facts of this case that it wasn't warranted the board says that you should be for close from arguing that ramirez was not a high level manager because you did not make that argument anywhere in your exceptions or responses to the general make to preserve an issue just has to put the board on notice and put the board on notice that we're challenging the remedy because the factors don't total up to it puts them on notice that we're going to be arguing about argument one factor is necessary implied where challenging the results of combining those factors as a whole so if there is a if there's a factor test and you file exceptions that say that you know these facts don't meet the standards of the test without articula which if any of the five factors are that you believe that sufficient to allow you to later challenge any of the five factors as being upper management i think and she had to report upper management i think another reason that it's something that was fair to bring up now cited eight c for the uncontested proposition that speech is protected if it's not misleading but you didn't really engage on this crucial point about i'm sorry not threatening you didn't really engage on this crucial point about why the recess threatening nature of the speech with within the four corners of the speech or whether you can make honor please the court michael jackson for the n l r b substantial evidence supports the sole d disputed finding of a violation here and the board acted well within its broad remedial discretion in ordering a notice reading to remedy that violation it knew when it filed its opening brief that it had not raised this argument to the board it should have made this excuse contention in its opening brief since it waited till the reply we've not had a chance to respond but the argument is merit less we maintain this court in fact has consistently held many times in reviewing and l r b orders specifically that employers arguments that the board failed to adequately explain a remedy or fail to consider a factor in ordering a remedy are jurisdictionally barred by section twenty because the employer never raised those arguments before the board looking just at the cases that are included in our grief some of them are cases where this court has rejected as jurisdiction only barred arguments that the board failed to explain or remedy or fail to consider a factor in determining around me that that s eems right to me but what about the nd strand of their argument that just focuses on they just say regardless of the explanation  say would not be so they would not be defensible to impose that remedy on this record which is essentially the point they didn't make to the board why can't they make that argument here honor i could see we have not we did not contain our brief that they are jurisdictionally barred from arguing that the record does not warrant the remedy honestly i could see that argument because the board did find additional violations that the judge did not find and the board also relied in ordering the remedy on mr meir is a high level of status and her pervasive involvement in the well piece which the judge also did not consider in making the finding you get discretion as to remedial choice although that's fine you're obviously in a very strong position but why shouldn't association with speech rather than just informing the employees yourselves of you determination of whether to enforce the notice treatment but aside from that this court has repeatedly inforce this remedy for the past thirty plus years it recognizes for example we have but i didn't see any of the cases consideration of the st amendment issue and i did see a lot of commentary from making points that under current st amendment compelled speech law would seem to support a pretty good case well i guess your honor as you pointed out there are older decisions in which some judges have raised concerns about what they see as a level of embarrassment involved on the part of the reader of the notice and i do think that their discussion as you say could be read to of relate to or tied to some st amendment related concepts but the fact is not withstanding that commentary by those judges in past decisions for thirty plus years the court with the knowledge of its prior precedent has they did not believe that the circumstances warranted that those reading remedy yes your honor thank you for the question i'd love to clarify that point the their contention is meritless and the argument is jurisdictionally barred because the only thing that the company can point to is the answering brief that it filed in response to the remedy anything about mr maritz his high level status or about the involvement of high level managers in the unfair labor practices when it filed its exceptions and it said that the circumstances did not you were on the ten minutes but are there any more questions so there's less reason for deference here to their waiting on these factors when they didn't consider traditional remedies are not or were not appropriate or not necessary there and put no four in the surrounding pages of its opinion it doesn't make any fact finding about her status just assumes that i don't see any evidence in this record that shows upper management side that's why another reason why  all right thank you counsel and madam clerk would you please call the next case