Question: Plaintiff suffered a heart attack. He applied for Social Security disability Insurance (SSDI). His claim was initially rejected, but he appealed and was successful on appeal. The social security administrative law judge found that plaintiff was unable to perform the work he had done in the past. During the pendency of this social security claim, plaintiff was also a part of an unfair labor practice complaint against his employer. The National Labor Relations Board administrative law judge found that plaintiff and his co-workers had been the victims of their employer's unfair labor practices and therefore would ordinarily be entitled to back-pay awards for any periods of unemployment related to the unfair labor practices.

However, the employer contended that plaintiff should not be eligible for any back pay under the National Labor Relations Act because he had a total-disability claim concurrently pending with the Social Security Administration and would not have reported for work during the pendency of that claim anyway. What do you think? See Performance Friction Corporation, [335 NLRB No. 86, 2001 WL 1126575 (NLRB)].