(dissenting):
I respectfully dissent for the reason that in my view the Supreme Court’s decision in NLRB v. Magnavox Co., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974), established fundamental principles regarding employees’ in-plant § 7' solicitation rights which preclude our giving collateral estop-pel effect to our earlier decision in United Aircraft Corporation v. NLRB, 440 F.2d 85 (2d Cir.1971), and mandate our enforcement of the Board’s order in the present case.
*1265In United Aircraft we held that an employer’s limited ban on union solicitation on the employer’s premises during paid nonworking time1 does not unduly restrict or dilute the employee’s “fundamental rights” under § 7 and that the union may waive unlimited solicitation, at least when some limited remaining solicitation rights are permitted. We upheld the ban on the ground that the employees remained free to solicit on company property before and after work and during the unpaid lunch hour. Thereafter, in Magnavox the Supreme Court held that banning of employees’ distribution of literature to employees on plant property during nonworking time interferes with employees’ § 7 rights and that the union may not agree to waive those rights. The Court reasoned that the right to distribute and solicit, unlike “rights in the economic area,” such as the right to strike, strikes too close to the union’s self-interest to be waivable and added:
“The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees. So long as the distribution is by employees to employees and so long as the in-plant solicitation is on nonworking time, banning of that solicitation might seriously dilute § 7 rights. For Congress declared in § 1 of the Act that it was the policy of the United States to protect ‘the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.’ 29 U.S.C. § 151.” 415 U.S. at 325-26, 94 S.Ct. at 1102.
The majority seeks to limit the broad reach of Magnavox by suggesting that the decision dealt only with “a complete ban on union-related distribution or solicitation on company property” and that there was “no indication that the Court intended to deal with the unions’ power to bargain with respect to mere limitations on the time and place of union solicitation, as contrasted with the complete elimination of such solicitation.” (At 1263-64). This statement is not supported by the Magnavox decision itself or the authorities cited by it.
The Magnavox decision did not deal with a “complete ban.” Nor did it suggest that limited, selective bans might be tolerated. The Court took pains to point out that the ban at issue was limited in that it did not prohibit the employees from using the bulletin board or oral solicitation to communicate with fellow-employees. Nevertheless the Court upset the ban. Moreover, the Court cited with approval and relied on its earlier decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-03, 65 S.Ct. 982, 987-88, 89 L.Ed. 1372 (1945), and the Board’s decision in Gale Products, 142 N.L.R.B. 1246, 1249 (1963). See 324 U.S. at 801 n. 6, 65 S.Ct. at 987 n. 6. In Republic Aviation Corp. the Court, quoting with approval the Board’s decision in Matter of Peyton Packing Co., 49 N.L.R.B. 828, 843-44, stated:
“ ‘It is no less true that time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee’s time to use as he wishes without unreasonable restraint, although the employee is on company property. It is therefore not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, although on company property. Such a rule must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.’ ” 324 U.S. at *1266803-04 n. 10, 65 S.Ct. at 988 n. 10. (Emphasis added).
Nor may a limited ban on time and place of solicitation be justified on the ground that there are adequate alternatives. As the Court has pointed out, “union organization must proceed upon the employer’s premises or be seriously handicapped,” Republic Aviation Corp., supra, 324 U.S. at 799, 65 S.Ct. at 986, and “[t]he place of work is a place uniquely appropriate for dissemination of. views,” Magnavox, supra, 415 U.S. at 325, 94 S.Ct. at 1102. It is true, as the majority points out (at 1264), that in Magnavox the Supreme Court noted that “as respects employers, the rights of solicitation of employees by employees concerning § 7 rights are not absolute,” 415 U.S. at 326, 94 S.Ct. at 1102. But the Court was not suggesting that a limited ban might be permitted. As it explained in the very next sentence (not quoted by the majority) it was referring to interference with plant production or discipline that might necessitate some limitations. There is no evidence —indeed, not even a suggestion — that the union solicitation-during nonworking time in the present case interfered in any way with plant operations or discipline. The reference is therefore irrelevant.
Since the Supreme Court in Magnavox established a principle of broad public importance our decision in United Aircraft Corp. must be denied collateral estoppel effect. Commissioner v. Sunnen, 333 U.S. 591, 599, 68 S.Ct. 715, 720, 92 L.Ed. 898 (1948); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874-75 (3d Cir.1972); Denver Building & Construction Trades Council v. NLRB, 186 F.2d 326, 332 (D.C. Cir.1950), reversed on other grounds, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). Our United Aircraft decision cannot properly be used to create a “preclusive exception” or independent enclave for United Technologies in violation of the basic principles of Magnavox. Equality of treatment is essential in the public interest.
For these reasons I would enforce the Board’s order.
. Although the plant rule at issue in the present case prohibits union solicitation “during working hours,” the phrase has been interpreted by the employer and employees as meaning paid non-working rest time spent away from work stations.
The Supreme Court’s decision in Magnavox, supra, prohibits employer-restrictions on or union waiver of employees’ union solicitation rights during non-working hours, whether paid or unpaid.
By paying employees the employer cannot convert non-working time into working time. Otherwise the employer and union could preclude solicitation during a lunch hour merely by designating it as “working time.”