Does review for 'substantial evidence' require courts to ensure that the Board's decision is reasonably supported by the evidence as a whole, including evidence that detracts from the Board's view, as opposed to deferring to the Board if the record contains any evidence that, when considered in isolation, would support the Board's ultimate decision?

The National Labor Relations Act (“Act”) requires employers to bargain with their employees’ union regarding terms and conditions of employment. Ordinarily, an employer may only make unilateral changes after bargaining to impasse. The National Labor Relations Board (“Board”) has recognized an exception to that rule, which allows an employer to implement changes if the union engages in dilatory tactics to delay bargaining or forestall impasse. Here, the parties bargained for 14 months. The union rejected more than 70 bargaining dates offered by employer, delayed bargaining for months at a time, and ultimately refused to bargain by placing an impossible condition on further bargaining. Consequently, employer implemented its last, best, and final offer. The Board ruled that employer violated the Act. Employer sought judicial review pursuant to 29 U.S.C. § 160(f), which authorizes reviewing courts to set aside the Board’s orders, provided that “findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall . . . be conclusive.” The court of appeals affirmed the Board in a split-panel decision after concluding it had “no choice but to affirm it, based on the applicable standard of review.” The questions presented by this case, which are of critical importance to employers, are: 1. Does review for “substantial evidence” require courts to ensure that the Board’s decision is reasonably supported by the evidence as a whole, including evidence that detracts from the Board’s view, as opposed to deferring to the Board if the record ii contains any evidence that, when considered in isolation, would support the Board’s ultimate decision? 2. Is an employer excused from bargaining to impasse (and thus permitted to unilaterally change the terms and conditions of employment) when a union engages in dilatory tactics to delay bargaining and prevent impasse?