In petition for rehearing filed in this case it is contended that the Court failed to give consideration to the Second Circuit opinion in Seeler v. Trading Port, Inc., 517 F.2d 33 (2d Cir. 1975). The Court did consider that decision but did not totally agree with it. To the extent that our reasoning differs from the Second Circuit’s rationale we decline to follow it.

The Petition for Rehearing is Denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.