John E. Wingenbach, Respondent, v. Mushroom Transportation Co., Inc., Appellant

John E. Wingenbach, Respondent, v Mushroom Transportation Co., Inc., Appellant. [MAJORITY] Order unanimously affirmed, with costs. Memorandum: This is an appeal by Mushroom Transportation Company, Inc., from an order of Special Term, Erie County, which denied its motion for summary judgment dismissing plaintiffs complaint, denied plaintiff-respondent’s motion for summary judgment and granted plaintiff-respondent’s motion to amend its complaint. Special Term properly concluded that, construing the complaint and moving papers liberally and accepting Wingenbach’s factual allegations as true, plaintiff has ample legal basis for viable causes of action against both the union and his employer, Mushroom Transportation Company, Inc. Further, since plaintiff, Wingenbach, attempted to use the grievance procedure (Republic Steel v Maddox, 379 US 650), claimed that the union breached its duty of fair representation in not processing his claims and that defendant-appellant repudiated the contract grievance procedure by not honoring the decision of the State joint and local committees (Vaca v Sipes, 386 US 171), and asserted that further resort to the grievance procedure would be futile (Glover v St. Louis—San Francisco Ry. Co., 393 US 324), we conclude that at this stage of the litigation the employer’s defense of nonexhaustion of administrative remedies does not bar Wingenbach’s suit for wrongful discharge (Schum v Buffalo Ry. Co., 496 F2d 328). (Appeal from order of Erie Special Term denying motions for summary judgment.) Present—Moule, J. P., Cardamone, Simons, Dillon and Goldman, JJ.