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RETAIL STORE EMPLES. UNION, LOCAL 400 v. DRUG FAIR

December 22, 1969

RETAIL STORE EMPLOYEES UNION, LOCAL 400 et al., Plaintiff,
v.
DRUG FAIR-COMMUNITY DRUG CO., Inc., Defendant



The opinion of the court was delivered by: MCGARRAGHY

 This action was originally brought by the Retail Store Employees Union, Local 400, and fifty-two licensed pharmacists against the pharmacists' employer, Drug Fair-Community Drug Company, Inc., for overtime pay allegedly due under the Fair Labor Standards Act. (Act of June 25, 1938, C. 676, 52 Stat. 1060; 29 U.S.C. § 207; hereinafter "the Act.")

 Drug Fair is a large retail drug store chain which operates approximately one hundred nineteen stores in the Metropolitan Washington, D.C. area. At all times material, Drug Fair has received from its operations gross sales in excess of $1,000,000.00 annually and each of defendant's individual retail drug stores in which each of the plaintiffs is or was employed had annual gross sales receipts in excess of $250,000.00.

 This action has been dismissed as to plaintiffs, Retail Store Employees Union and forty-seven of the individual pharmacists.

 The remaining five plaintiffs contend that, in violation of the Act, as interpreted by the lawful regulations of the Wage and Hour Administrator, defendant has failed to pay the plaintiffs any overtime compensation (time-and-a-half) for hours worked in excess of forty-four hours during the period September 3, 1963 to September 3, 1964; and for hours in excess of forty-two hours from September 3, 1964 to September 3, 1965; and for the the hours in excess of forty hours from September 3, 1965 to June 30, 1969.

 Pursuant to Section 16(b) *fn1" of the Act, plaintiffs seek the unpaid overtime, an equal amount in liquidated damages, attorneys' fees and costs.

 Jurisdiction is conferred on this court by the provisions of 28 U.S.C. § 1337.

 Section 13(a)(1) *fn2" provides that "executive, administrative and professional employees" are exempt from the overtime requirements of Section 7. *fn3"

 Defendant contends that the plaintiffs, as pharmacists, are employed by the defendant in a bona fide "professional" capacity within the meaning of Section 13(a)(1) and the Regulations issued thereunder, and are, therefore, exempt from overtime compensation benefits of the Act.

 Defendant also contends that coverage of the plaintiffs under the Act on the basis of their being employees of an "enterprise" engaged in commerce, as defined by Section 3(s)(1) *fn4" is beyond any power of Congress to regulate commerce.

 Defendant also contends that the provisions of Section 13(a)(1) granting authority to the Secretary of Labor or his delegate to establish regulations "defining and delimiting" what is meant by an executive, administrator or professional is an unconstitutional delegation of legislative authority, and further, that such regulations defining a professional employee in terms of his form of compensation are vague, unreasonable and capricious.

 The court will consider the above constitutional issues first.

 Until the 1961 Amendments to the Act, the Fair Labor Standards Act did not apply to employees in retail establishments like Drug Fair. Section 3(s) applied the so-called "enterprise doctrine" to retail establishments. The enterprise doctrine meant that instead of only extending protection to employees individually connected to interstate commerce, the Act now covered all employees of any enterprise engaged in commerce. The court is of the opinion that Drug Fair squarely falls within the scope of Section 3(s) of the Act. Therefore, its employees are covered by the Act.

 The constitutionality of the enterprise doctrine has been firmly established by the reasoning in United States v. Darby, 312 U.S. 100, 61 S. Ct. 451, 85 L. Ed. 609, 1941, and by Maryland v. Wirtz, 392 U.S. 183, 188-193, 88 S. Ct. 2017, 2019-2022, 20 L. Ed. 2d 1020, 1026-1029, 1967, and needs no further comment here.

 It is also well established that the regulations issued by the Wage and Hour Administrator are valid and binding as a reasonable exercise of delegated authority. Craig v. Far West Engineering Company, (9th Cir., 1959), 265 F.2d 251, 257, 72 A.L.R.2d 1143, 1150, cert. den. 361 U.S. 816, 80 S. Ct. 57, 4 L. Ed. 2d 63; Sun Publishing Company v. Walling, (6th Cir., 1944), 140 F.2d 445, 449, cert. den. 322 U.S. 728, 64 S. Ct. 946, 88 L. Ed. 1564. See also Fanelli v. United States Gypsum Co., (2nd Cir. 1944), 141 F.2d 216, 218, and Walling v. Yeakley, (10th Cir. 1944), 140 F.2d 830, 832.

 Defendant attacks the Wage and Hour Administrator's Regulation requiring that an "executive, administrative or professional" employee receive a minimum salary before being exempt under the Act as arbitrary and capricious. However, numerous courts have held these regulations to be a reasonable exercise of authority delegated to the Administrator. Walling v. Yeakley, supra; Helliwell v. Haberman, (2nd Cir. 1944), 140 F.2d 833, 834; Craig v. Far West Engineering Company, supra, 265 F.2d pp. 259-260; Tripp v. May (7th Cir. 1951), 189 F.2d 198, 201-202; Wirtz v. Mississippi Publishers Corp. (5th Cir. 1966), 364 F.2d 603, 608; Chepard v. May (D.C.S.D.N.Y. 1947), 71 F. Supp. 389, 391-392.

 This court is of the opinion that the Regulation attacked here (29 C.F.R. 541.3) is entirely reasonable and well within the authority delegated to the ...


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