Ralph WELLS, Plaintiff-Appellee, v. SOUTHERN AIRWAYS, INC. and Airline Pilots Association International, Defendants-Appellants

Ralph WELLS, Plaintiff-Appellee, v. SOUTHERN AIRWAYS, INC. and Airline Pilots Association International, Defendants-Appellants. No. 74-3706. United States Court of Appeals, Fifth Circuit. Nov. 6, 1975. Rehearing and Rehearing En Banc Denied Jan. 8, 1976. Robert S. Savelson, Michael E. Abram, New York City, Robert J. Martin, Jr., Atlanta, Ga., for A.L.P.A. John Bacheller, Jr., Michael H. Campbell, Atlanta, Ga., for Southern Airways, Inc. William M. Pate, Atlanta, Ga., for plaintiff-appellee. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC (Opinion Aug. 11, 1975, 5 Cir., 1975, 517 F.2d 132). Before THORNBERRY, SIMPSON and RONEY, Circuit Judges. [MAJORITY — PER CURIAM:] PER CURIAM: Subject to the following, the Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied. Plaintiff-appellee Wells urges in his petition for rehearing that this Court’s reversal of the district court without providing for remand denied him the opportunity to present his claim against the union for breach of the duty of fair representation. Under the rule of Czosek v. O’M ara, 1970, 397 U.S. 25, 90 S.Ct. 770, 773, 25 L.Ed.2d 21, a claim for breach of the duty of fair representation is separate and distinct from plaintiffappellee Wells’ claim that the System Board procedure denied him due process. Accordingly, and without intending any comment as to the merits of the fair representation claim, this case is remanded to the district court for consideration of that claim.