The opinion
DUNIWAY, Circuit Judge
(concurring).
I concur in the result. However, I do not see how we can avoid passing upon the validity of the employers’ “no solicitation” rule. The order of the Board prohibits promulgating or enforcing any unlawful no solicitation rule. This order can be justified only if the rule that the employer had in effect was unlawful. I think that it was unlawful under the decisions in N. L. R. B. v. Essex Wire Corp. and Republic Aviation Corp. v. N. L. R. B., cited in the majority opinion. In my opinion, the decision of a panel of this court in Wah Chang Corp. v. N. L. R. B., 9 Cir., 1962, 305 F.2d 15 , on this point, is clearly wrong for the reasons stated by Judge Hamley in his dissent in that case, and I am convinced that eventually this court will have to overrule it. There, however, the court based its decision on the manner in which the rule was enforced. No such evidence was presented in this case, and therefore that case is not controlling here.