(dissenting).
I respectfully dissent. The majority opinion affirms the denial of relief because the district court found that appellants did not prove bad faith on the part of the union. Because a defendant’s bad faith is not a necessary element of a claim under the Civil Rights Act, and because I regard the district court’s findings as inconsistent and insufficient, I dissent.
Appellants, who are women, asserted in their complaint that the union failed to employ proper grievance procedures on their behalf to redress their layoffs by their employer when men with less seniority were hired to perform duties identical or similar to theirs. The complaint charged that the union discriminated against them “because of their sex by failing to represent them in grievance procedures.” Injunctive and monetary relief, in the form of backpay, were sought.
The district court, at the conclusion of the trial at which the defendant union rested without presenting any evidence, resolved in plaintiffs’ favor what he concluded to be “the sole issue” for him to determine. Specifically, the court found “that the defendant Union failed to adequately represent the plaintiffs, and that the allegation of the complaint that the defendant Union failed to employ proper grievance procedures on behalf of the plaintiffs is well taken.” Nevertheless, although he gave them costs, the district court refused to award damages to plaintiffs for three reasons: the union was entitled to rely on the state statutes mandating discriminatory treatment of females; the union was under no duty to challenge those statutes; and there was no showing that the union acted in bad faith.
I believe that none of these reasons provides an adequate ground to justify denying a remedy. The first is insufficient because the union, unlike the employer in this case and in Manning v. International Union, 466 F.2d 812 (6th Cir. 1972), was not the party regulated by the female protective statutes, and thus was not whip-sawed between the requirements of state and federal laws. The second reason is contradicted by the court’s own finding that the union did breach a duty owed to plaintiffs to represent them adequately, and is irrelevant in any case because plaintiffs did not request the union to challenge the state statutes. The third reason — on which the majority in this case places its reliance — is a misapprehension of the test to be applied in resolving damage claims under Title VII.
*406The relevant statute;, 42 U.S.C. § 2000e — 5(g), provides in pertinent part:
(g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the -unlawful employment practice). Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.
This provision does not, in my view, require that a plaintiff show bad faith on the part of the defendant as a precondition to recovering backpay. The requirement that the defendant should have “intentionally” discriminated means no more than “that the defendant meant to do what he did, that is, his employment practice was not accidental.” Papermakers Local 189 v. United States, 416 F.2d 980, 996 (5th Cir. 1969), cert, denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d '100 (1970). It is clear that a plaintiff does not have to show bad faith in order to establish the commission of an unlawful employment practice under the Act; “ . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Griggs v. Duke Power Company, 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). Accordingly, a plaintiff need show only a prohibited discriminatory consequence of an act intentionally undertaken; good faith on the part of the defendant, which must be, and in this case was not, pleaded by the defendant as an affirmative defense, Fed. R.Civ.P. 8(c), cannot insulate a defendant from a finding of discrimination and an order under § 2000e — 5(g) enjoining the unlawful practice. Since there is no requirement in the Act that a plaintiff show bad faith in order to establish his claim, we should not require it as a precondition to the awarding of damages— limited to backpay — intended to make the plaintiff whole.
We recognized in Manning, supra, that this provision of the Civil Rights Act gives district courts a degree of discretion in deciding whether to award backpay. See 466 F.2d at 815-816. The statutory standard empowers the courts to take “such affirmative action as may be appropriate.” The district court has not specified why an award of backpay to these appellants would not be appropriate to remedy the wrong they admittedly have suffered at the hands of the union, and none is advanced by appellee. I recognize the fact that the district court made the determination that the union did not act in bad faith, but this is an immaterial consideration as I have shown above. Accordingly, at a minimum we should remand for additional findings.
Moreover, the union introduced no evidence at trial, and it has pointed to no evidence in plaintiffs’ case to support its contention that it acted in good faith or to support the court’s finding that it did not act in bad faith. Assuming that this finding was permissible despite noncomplianee with Fed.R.Civ.P. 8(c), there appears to be no evidence to support it.
If we should assume, as the majority observes in the last paragraph of its opinion, that the standard of 29 U.S.C. § 185 governs this case, I still believe that we should at least remand the case for further consideration. In Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967), the Court stated:
A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. (Emphasis added.)
Bad faith is thus only an alternate predicate for a claim under § 301; a plain*407tiff can recover if he can show that the union acted arbitrarily or discriminato-rily but not necessarily in bad faith. There is no indication that the district court considered these other elements in its resolution of plaintiffs’ claim. Further, if bad faith is an essential part of a plaintiff’s claim under § 301, then the findings of the district court- are inconsistent, because the court found a breach of duty on the part of the union but then found that the union had not been guilty of bad faith.
Accordingly, I would, at a minimum, reverse and remand for additional findings. In the alternative, I would reverse the judgment of the district court and direct the entry of an award of backpay to plaintiffs in an amount equal to their wage loss less the amounts received from the employer in settlement of the claim against it and any other sums received in mitigation.