_________________________

Nos. 95-4183MN, 96-1010MN

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Michael J. Rudolph and *

James A. Lindquist, *

*

 Appellants/Cross-Appellees, *

* On Appeal from the United

v. * States District Court

* for the District of

* Minnesota.

Metropolitan Airports *

Commission, *

*

 Appellee/Cross-Appellant. *

___________

 Submitted: October 21, 1996

 Filed: December 24, 1996

___________

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and BEAM, Circuit

Judges.

___________

RICHARD S. ARNOLD, Chief Judge.

Plaintiffs filed this action under the Fair Labor Standards

Act (FLSA), 29 U.S.C. §§ 201-19 (1994), to recover back wages for

time spent providing home care of dogs in the Metropolitan Airports

Commission's (MAC) canine unit. A jury found that both plaintiffs

had worked compensable time caring for the dogs (although not the

full amount alleged) for which MAC had not paid them. The District

Court then calculated the back wages owed to plaintiffs and awarded

attorneys' fees and costs. We reverse the Court's award of back

wages, as well as the award of attorneys' fees, because the
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plaintiffs had been paid fully under the terms of a reasonable

agreement they had with MAC regarding the hours they would work in

caring for the dogs. We hold that such an agreement is authorized

by a regulation issued by the Secretary of Labor.

I.

The Airport Police Department, a division of the Metropolitan

Airports Commission (which oversees public airports in the

Minneapolis-St. Paul area), created a canine unit in 1989 to aid in

the detection of drugs. Michael Rudolph and James Lindquist, as

well as six other officers with the Airport Police, asked to be

considered for two canine-handler positions, which would require

taking the dogs home at night to feed, groom, exercise, and

otherwise care for them. Rudolph and Lindquist were selected for

the positions.

Shortly after Rudolph and Lindquist began caring for the dogs,

MAC realized that it had an obligation under FLSA to compensate the

officers for the time they spent at home doing this work. MAC and

the officers met and formed an interim agreement, in June 1990,

that the officers would perform, and be compensated for, one-half

hour of dog care on their on-duty days, and one hour (at an

overtime-pay rate) on their off-duty days. The agreement (like all

the ones that followed) directed that the officers were not to

perform additional care unless they had received prior approval

from a supervisor.

In September 1990, the officers wrote a memorandum to MAC

requesting that the agreement struck in June be signed and attached

to the Metropolitan Airports Police Federation (the union)

contract. At about the same time, MAC was concluding a survey of

local police departments' compensation policies with respect to

canine handlers. The report compiled from this survey indicated

that providing one-half hour of care time on off-duty days would
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not be inconsistent with other local police departments' policies.

Consequently, MAC decided it wanted to reduce the off-duty-day time

to one-half hour, and it so informed Rudolph and Lindquist,

providing them with a copy of the survey report. Rudolph and

Lindquist wrote to express their disagreement with this change,

stating that they spent more than one-half hour on off-duty days

caring for the dogs, and explaining that they needed this

additional time. 

In early October, Rudolph and Lindquist met with MAC to

discuss their objections to the reduction in off-duty-day time, at

which point they were asked to document the time they spent with

the dogs. Lindquist apparently did not submit any documentation in

the coming month, as requested, and Rudolph's documentation

indicated that he spent 21 minutes per on-duty day and 54 minutes

per off-duty day in dog care (including unrequested exercise and

grooming). From this, MAC concluded that one-half hour would be

reasonable for all days, and decided to institute this policy in

November, 1990. 

MAC continued to pay the officers for one hour of time on offduty days, because Lindquist and Rudolph were not satisfied and had

decided to refer the issue to the collective bargaining that would

take place in 1991 to renegotiate the union's soon-to-expire

contract with MAC. Both Rudolph and Lindquist were members of the

union, and Lindquist was a principal negotiator for it. In June

1991, the union and MAC met with a mediator to attempt to resolve

a number of contract issues, including the compensation that would

be paid to canine handlers. MAC's labor-relations manager

submitted to the mediator a proposed resolution of the disputed

issues for the mediator to suggest to both parties. Included in

the proposal was a provision that would compensate canine handlers

one-half hour for dog care on all days and provide them with a

take-home vehicle. The union decided not to accept the mediator's

proposal, which it could reject or accept only in full. 
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As a consequence of the union's rejection of the proposal, the

mediator asked both parties to submit their final positions on each

of the 44 issues for which they were at an impasse in preparation

for arbitration. The final position taken by the union regarding

canine care included a request for one-half hour of compensation

for work for both on- and off-duty days, $60.73 bi-weekly

specialist pay, and the use of a vehicle for the officers to

transport the dogs to and from their homes. 

The dispute then went to interest arbitration. Before

arbitration commenced, Lindquist, writing as Vice President of the

union (and, after consulting him, on Rudolph's behalf), proposed

resolution of the canine compensation issue by offering to accept

the mediator's proposal (a vehicle and one-half hour per day) on

this issue. Appellee's App. 32. MAC responded with an acceptance

of Lindquist's proposal, specifically noting the terms - including

the absence of the specialty pay provision - and attaching a copy

of its proposed policy to its letter. Id. at 66. Lindquist

confirmed his agreement, noting that the MAC's policy had

"essentially the same" terms as those stated in the union's final

position - the absence of specialist pay being the only difference

- and asking that the policy be implemented as soon as possible.

Id. at 65. MAC acknowledged receipt of this letter, writing

Lindquist and the union that it considered it a "final and complete

settlement" of this disputed issue, and indicated that it would

implement the new policy "as soon as is feasible." Id. at 27. MAC

then began to pay Rudolph and Lindquist for one-half hour of work

for both on- and off-duty days. The arbitration of the remaining

issues commenced shortly thereafter. The union negotiators never

raised the canine care issue, nor did MAC's negotiators, who

considered the issue to be settled. Tr. 778. As a consequence,

the policy did not appear in the contract signed by MAC and the

union in early 1992. 

Plaintiffs filed this action in July, 1994, pursuant to 29
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U.S.C. § 216(b) (1994), to recover back pay and the liquidated

damages that may be awarded for violations of FLSA, and to obtain

a declaratory judgment that MAC willfully violated FLSA. At the

close of the evidence, the District Court asked the jury to decide

whether Rudolph and Lindquist had, both for on-duty and off-duty

days: (1) performed compensable work in excess of one-half hour;

and (2) come to a reasonable agreement with MAC about the amount of

work they were to perform. The Court also asked the jury to find

how much in excess of one-half hour (if at all) the plaintiffs had

worked on on- and off-duty days and whether MAC's failure to pay

overtime was a willful violation of FLSA.

The jury found that plaintiffs had worked more than one-half

hour of compensable work on both on- and off-duty days. It

concluded, however, that MAC and plaintiffs had come to a

reasonable agreement as to the amount of time the plaintiffs should

spend caring for the dogs on on-duty days and therefore (as

instructed) it did not find how much additional time plaintiffs had

worked on such days. The jury determined that plaintiffs and MAC

had not reached a reasonable agreement about off-duty days, and

that Rudolph and Lindquist had performed an additional half-hour of

compensable work (not including the half-hour for which they

already had been compensated) on their off-duty days for which they

had not been paid. The jury also found that MAC had not willfully

violated FLSA.

Based on these findings, the District Court calculated the

amount of back pay owed to plaintiffs. It calculated the total

amount of back pay owed for the three-year period (from the date

MAC reduced plaintiffs' off-duty-day pay to the date of judgment),

and then deducted from that amount the total of all premium

overtime-pay and compensatory time off MAC had given to plaintiffs.

The result was an award to Rudolph of $1592.16 (doubled, pursuant

to 29 U.S.C. § 216(b)'s provision for liquidated damages, from

$796.08), and nothing to Lindquist, because his overtime credits
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exceeded the amount MAC owed him in back pay. The court also

awarded $31,644.31 to Rudolph and Lindquist for attorneys' fees and

costs, a reduction from their request of over $257,000.

Rudolph and Lindquist appeal the District Court's method of

calculating damages, its submission to the jury of the question

whether the parties had made a reasonable agreement, and its

reduction of attorneys' fees from the requested amount. MAC crossappeals on several grounds. First, it argues that it was entitled

to judgment as a matter of law because no reasonable jury could

find either that the plaintiffs worked beyond the requested halfhour or that the parties had not come to a reasonable agreement

regarding off-duty days. MAC also argues that the District Court

erred in finding that the violations were not in good faith, in

failing to calculate damages under FLSA's provision for publicsafety employees, and in awarding over $30,000 in attorneys' fees

and costs for a recovery of less than $2,000.

II.

The FLSA and its accompanying regulations lay out exacting

standards concerning the maximum number of hours covered employees

may work per week without their employer's incurring an obligation

to pay overtime at a premium wage rate. Ordinarily, all time that

an employer "suffers or permits" its employees to work must be

compensated, any contract to the contrary notwithstanding.

Employers and employees may not, in general, make agreements to pay

and receive less pay than the statute provides for. Such

agreements are against public policy and unenforceable. See

Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728 (1981). The

regulations, however, do provide certain exceptions. Critical to

the case at hand is 29 C.F.R. § 785.23, which allows the use of a

"reasonable agreement" to determine the number of compensable hours

due an employee who works at home or who lives on the employer's

premises. The regulation reads as follows:
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§ 785.23 Employees residing on employer's

premises or working at home.

An employee who resides on his employer's

premises on a permanent basis or for extended

periods of time is not considered as working

all the time he is on the premises.

Ordinarily, he may engage in normal private

pursuits and thus have enough time for eating,

sleeping, entertaining, and other periods of

complete freedom from all duties when he may

leave the premises for purposes of his own.

It is, of course, difficult to determine the

exact hours worked under these circumstances

and any reasonable agreement of the parties

which takes into consideration all of the

pertinent facts will be accepted. This rule

would apply, for example, to the pumper of a

stripper well who resides on the premises of

his employer and also to a telephone operator

who has the switchboard in her own home.

Plaintiffs argue that § 785.23 does not apply to this dispute

because the dog care they provided was only a small part of their

total work as officers. The regulation, they contend, applies only

to employees who live and perform all of their work on their

employer's premises or who work entirely at home. MAC advances a

broader reading of the regulation, arguing that an employer can

compensate its employees for work at home pursuant to any

reasonable agreement that "takes into consideration all of the

pertinent facts." Bouchard v. Regional Governing Bd., 939 F.2d

1323, 1331 (8th Cir. 1991) (internal quotations and citations

omitted), cert. denied, 503 U.S. 1005 (1992).

We believe that § 785.23 goes beyond plaintiffs' narrow

reading and applies to the situation at hand. The regulations

explain that the provision is but a specific application of general

FLSA principles to a frequently occurring problem, 29 C.F.R.

§ 785.10, and that the courts are ultimately responsible for

interpretations of the Act, 29 C.F.R. § 785.2. The regulation's
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caption, which we may properly use to construe it, expressly

mentions not only work performed by employees who live on the

employer's premises, but also work performed in employees' homes.

An example of this second category of work covered by the

regulation is the telephone dispatcher in Halferty v. Pulse Drug

Co., 864 F.2d 1185 (5th Cir. 1989), who did perform all of her work

at home. But the fact that the regulation covers such a case does

not mean that it does not cover employees only part of whose work

is performed at home. Nothing in the words of the regulation

contains such a limitation.

The reason for there being such a regulation in the first

place also covers this case. The employer cannot easily determine

how long the officers work at home caring for the dogs. Dog

care - feeding, grooming, cleaning cages or pens, and exercising -

may take more time on one day than on others. It may be spread

out, sporadic in nature. An officer might feed a dog when they

first get home, give the dog water later, and perform other care

still later. The indeterminate nature of these tasks, we think,

makes them exactly the sort of work as to which it makes sense for

the parties to come to an agreement, to eliminate complicated,

repetitious, and hard-to-resolve disputes about exactly how much

time it took to take care of the dogs each day. So long as there

was an agreement in fact, and the agreement was reasonable, we

think § 785.23 applies to this case. It was proper for the

District Court to put to the jury the question whether the parties

had made a reasonable agreement.

We have carefully considered the authorities cited by

plaintiffs in support of their contention that § 785.23 does not

apply to this case. Two cases are cited from our own Circuit,

Hultgren v. County of Lancaster, 913 F.2d 498 (8th Cir. 1990), and

Bouchard v. Regional Governing Bd., supra. Both of these cases

concerned "sleep time" of employees all of whose work was done on

the premises of the employer. Neither case addresses the precise
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issue involved here: whether the regulation applies to work

performed at home if the employees in question also do some work at

the employer's place of business. Neither case, even in dictum,

throws any light on this question. Bouchard does discuss the

provision of the regulation specifying that it applies to employees

residing on an employer's premises only if the employee resides

there "on a permanent basis or for extended periods of time."

Plaintiffs argue that the work that they performed at home in the

present case did not cover "extended periods of time" within the

meaning of the regulation. The argument is beside the point. The

phrase "extended periods of time" appears only in that portion of

the regulation pertaining to employees residing on their employer's

premises. It has nothing to do with employees performing work at

their own homes.

Plaintiffs also refer to a brief filed by the Department of

Labor as amicus curiae in Nelson v. Alabama Institute for Deaf and

Blind, 896 F. Supp. 1108 (N.D. Ala. 1995). They imply that the

position taken by the Department in this brief supports their

position in the present case. We have not been supplied with a

copy of the brief, and there is nothing in the reported opinion in

Nelson to support the position taken by plaintiffs here. Nelson,

like the cases from our own Court we have just discussed, was a

"sleep time" case. Among the questions presented was whether the

employees resided on their employer's premises for extended periods

of time, as required by the regulation. The Court held that they

did not, and mentions in a footnote, 896 F. Supp. at 1113 n.5, that

its holding is consistent with the position taken by the Department

of Labor in its amicus brief. Again, we see nothing here that is

relevant for present purposes. This case is a home-work case, and

the question is whether the regulation applies to employees who

work part of the time, but not all of the time, at home. For the

reasons we have given, we believe that the regulation does so
 1

We find some implied support for this conclusion in Reich v.

New York City Transit Authority, 45 F.3d 646 (2d Cir. 1995). That

case arose out of a dispute between the New York City Transit

Authority and its Police Department's dog handlers. The plaintiffs

requested compensation for time spent taking care of the dogs at

their homes, and also for commuting time. The Department of Labor

filed suit seeking compensation for both types of work. Certain

claims were then settled. In accordance with the settlement, the

parties' collective-bargaining agreement was amended to include a

provision entitling the handlers to compensation for specified

periods of time for taking care of the dogs at home. It is

apparent from the context that the handlers performed work both at

home and on the employer's premises. See 45 F.3d at 647 & n.1.

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apply.1

The jury found that the plaintiffs and MAC had come to a

reasonable agreement as to how much time Rudolph and Lindquist had

spent caring for the dogs on on-duty days. This verdict is

supported by substantial evidence, and plaintiffs are not entitled

to any recovery for on-duty days.

The jury, in contrast, found that the parties had not come to

a reasonable agreement concerning off-duty days. The District

Court subsequently denied MAC judgment as a matter of law on this

issue. While we review de novo the District Court's denial of

MAC's motion, we view the evidence presented at trial in the light

most favorable to Rudolph and Lindquist, the prevailing parties.

E.g., Larson ex rel. Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir.

1996) (en banc). Thus, although we are loath to reverse a finding

of a jury, we will do so when there is only a "scintilla of

evidence" or no "proof beyond speculation to support the verdict."

Ibid. (internal quotations and citation omitted).

As we have explained above, MAC, upon realizing its FLSA

obligations, sent Rudolph and Lindquist a memorandum proposing an

interim policy regarding compensation for dog care that would be in

place until a final policy was agreed to. Rudolph and Lindquist

accepted this proposal. When MAC concluded that one-half hour of
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dog care on off-duty days was reasonable, and should be its policy,

the parties parted ways, and decided to resolve the issue in the

context of collective bargaining.

After mediation of the union-MAC contract failed, and the

issues were set for interest arbitration, Lindquist sent a letter

to MAC offering to accept the mediator's proposal on the issue

involved in this case. The letter stated, in pertinent part, "You

assure me this is the offer: Take-home vehicles and one-half hour

compensation per day for care and maintenance of the dogs. After

hearing of the offer for the first time, Mike and I would be

willing to accept this policy." Appellee's App. 32. MAC responded

that it was happy to settle the issue on the terms presented by the

mediator - one-half hour of work on all days, a take-home vehicle,

and no specialist compensation - attached the mediator's proposal,

and asked for the union to provide a written statement

acknowledging acceptance of these terms. Id. at 66-67. Lindquist

answered MAC's acceptance letter with a letter of his own, the text

of which follows:

The Airport Police K-9 handlers and the

Federation agree to accept the K-9 policy as

presented in the mediator's proposal of June

10, 1991. As you have noted in your letter,

the Federation['s final position on this

issue] is essentially the same as your policy

with the exception of some additional

financial compensation.

Your willingness to implement this policy

immediately is appreciated and is the reason

for its acceptance. The Federation has

indicated a desire and willingness to settle

the entire contract short of interest

arbitration and each item agreed upon is a

step to that end.

Id. at 65. MAC responded again, reconfirming the terms, and

indicating that it would implement the policy as soon as possible.

Id. at 27. The officers began soon to receive pay on these terms,
 2

Rudolph also answered "No" when asked whether he had "ever

voluntarily entered into an agreement where you considered one-half

hour a day to be adequate to provide for the care and maintenance

of the animal." Tr. 676-77. This statement could be literally

true: that is, Rudolph may have entertained the personal belief

that the agreement he had made was not adequate. This does not

mean there was no agreement.

 3Lindquist appeared at trial to have believed the document

captioned "Statement of Final Positions for Metropolitan Airports

Police Federation," and submitted to the arbitrator after mediation

failed, which included a request for specialist pay, to be the

mediator's proposal. See Tr. 446, 820.

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as well as the use of a vehicle.

Lindquist testified that he did not feel that he had come to

an agreement with MAC,2 because MAC was not offering the specialty

pay that he thought the mediator's proposal contained.3 Tr. 458.

When later asked whether he agreed to the policy put in place in

1991, however, he stated that he and Rudolph "were accepting that

policy." Tr. 818. Even if we take Lindquist's testimony as a

whole as a claim that he based his offer of settlement on the wrong

document, the two letters he wrote (and the two he received)

explicitly state that the canine handlers were to receive one-half

hour of compensation per day, a take-home vehicle, and no

specialist pay. In his first letter, making the offer, Lindquist

makes no mention of specialist pay. In his second letter,

Lindquist again refers to the mediator's proposal, and contrasts

MAC's policy (which it had submitted to the mediator) with the

union's final position, which demanded the specialist pay. The

documentary evidence, especially when it is as unambiguous as it is

here, cannot be refuted by Lindquist's inconsistent testimony about

his incorrect beliefs. Therefore, no reasonable jury could accept

Lindquist's statements instead of the documented proof of an

agreement and its terms. A party who has made an unambiguous

written contract will not be heard to say that no agreement was

made.
 4

The plaintiffs could recall no time during the period in

dispute that they sought such approval.

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Perhaps the jury thought there was an agreement, but that it

was not reasonable. Rudolph and Lindquist contend that they

actually worked more than provided for on off-duty days. But the

agreement explicitly dictates the amount of time they were to spend

on dog care, and specifies that they needed to obtain prior

approval for any additional time they thought necessary.4 Thus,

the additional work the jury found plaintiffs to have performed was

neither "suffered nor permitted" by MAC. 29 C.F.R. § 785.11; see

also Donovan v. Williams Chem. Co., 682 F.2d 185, 188 (8th Cir.

1982) (holding husband-wife teams instructed to split 80-hourweekly operation of gas stations could not collect overtime pay for

having worked in excess of 40 hours each). Plaintiffs persist,

however, with the contention that because MAC knew or had reason to

know additional work was being performed for its benefit, it is

liable for the attendant wages. See 29 C.F.R. § 785.11. We cannot

imagine what more MAC could reasonably have done. It was entitled

to rely on plaintiffs to follow the clear terms of the agreement.

(Sending someone to monitor the plaintiffs' activities at home, in

addition to being exceedingly intrusive, would simply waste

additional MAC money.)

We do not know what amount of daily dog care is best. We

believe, however, that MAC has plenary authority to make that

determination about its own dogs, and direct its canine caretakers

accordingly. It is not enough for plaintiffs to show that they

worked more than agreed. They must show that the agreement

provided an unreasonably short amount of time to perform the

assigned tasks. Cf. Lyle v. Food Lion, Inc., 954 F.2d 984 (4th

Cir. 1992). This they have failed to do. There is no evidence

that a reasonable employer would necessarily have known that half

an hour per off-duty day was too short a time to perform the tasks
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MAC told the officers to perform. Any time beyond the half-hour

plaintiffs spent with their canine charges we presume stemmed from

their personal devotion to the dogs, and was, therefore, not

"predominantly for the benefit of the employer," Henson v. Pulaski

County Sheriff Dep't, 6 F.3d 531, 534-35 (8th Cir. 1993), as it

must be in order to constitute "work" within the statute's meaning,

as explained in Tennessee Coal, Iron, & R.R. Co. v. Muscoda Local

No. 123, 321 U.S. 590, 598 (1944). We therefore hold that MAC was

entitled to judgment as a matter of law that a reasonable agreement

existed as to off-duty days, and that plaintiffs were therefore not

entitled to any back pay.

III.

MAC and plaintiffs made a reasonable agreement as to the

amount of time Rudolph and Lindquist were to spend on dog care.

The portion of the judgment that held that plaintiffs are entitled

to no additional compensation for on-duty days is affirmed. The

portion of the judgment that held that plaintiffs are entitled to

additional compensation for off-duty days is reversed. The cause

is remanded with directions to enter judgment for defendants. We

need not address whether the District Court correctly calculated

the back wages owed. Because the plaintiffs are obtaining no

success on the merits of their claim, we vacate the District

Court's award of attorneys' fees.

It is so ordered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.