The opinion
BATCHELDER, Circuit Judge,
concurring.
I concur in the majority opinion. I write separately to highlight what, in my view, is the crucial issue in this case, namely, what level of deference this court should afford the NLRB when it interprets Supreme Court precedent. In order to accept the Board’s arguments, one must first accept the premise that Holly Farms governs that issue. This is not the case. Holly Fams speaks only to the level of deference due to the Board’s interpretation of the NLRA; it does not address the deference due to the Board’s interpretation of judicially created exceptions. Accordingly, we review the NLRB’s interpretation of the Babcock exception de novo.
In Cleveland Real Estate Partners, this circuit squarely addressed the question of whether the Babcock discrimination exception requires an employer to suffer non- *693 employee union trespassers on its property if that employer allows other organizations occasional access. On facts nearly identical to those presented here, we plainly rejected the argument put forth by the Board and held that “the term ‘discrimination’ as used in Babcock means favoring one union over another, or allowing employer-related information while barring similar union-related information.” Cleveland Real Estate Partners, 95 F.3d at 464. An employer’s granting charitable or merchant groups access to the mall pursuant to its policy while barring union protesters simply does not qualify as discrimination under Babcock.
Accordingly, I concur with the conclusion that this court should be guided by our decision in Cleveland Real Estate Partners, but emphasize that Holly Farms is simply inapplicable to any case that involves interpretation of court decisions.