dissenting:
I consider the majority opinion to be sorely flawed in a number of ways, and so respectfully dissent. Since I conclude that an instructional error necessitates reversal and a new trial, my dissent is rather narrowly focused.
I
Initially, I would briefly refer to the nature of the underlying problem, which seems to me to be somewhat obscured in the majority opinion. Appellant National Rifle Association (NRA) had a policy of permitting its employees to accrue up to a total of 225 hours (30 days) in unused annual leave time, for which they would be compensated upon separation from the association. Beyond that 225-hour total, there was no provision for payment for *827unused leave time. As noted by the majority, NRA did lay off 80 employees. Of them, six brought suit seeking payment for unused leave time in excess of the 225-hour limitation.1 By obvious implication, 74 of the discharged employees did not join in such a suit.
Since this dissent is at least temporarily separated from the majority opinion to which it is directed, it is appropriate to quote the relevant portion of the jury instruction which I consider to constitute reversible error:
Leave time is a form of compensation for services and once the services are rendered the right to secure the proposed compensation is vested as much as the right to receive wages or other forms of compensation. Vested means fixed, accrued, settled, and absolute. In the absence of expressed agreement to the contrary plaintiffs have a right to recover the value of the promised compensation. Such agreement to the contrary must be shown by the defendant, National Rifle Association of America... .
II
That instruction, in my opinion, was clearly erroneous in that it placed the burden of proof upon the defendant (NRA) to defeat the plaintiffs’ contentions as to their alleged entitlements. The majority opinion compounds that error by approving the trial court’s giving of the instruction. Since such a result flies in the face of hundreds of years of civil law, I consider the majority opinion to be wholly unsound on this issue.2
One of the most fundamental tenets of civil law, consistently reaffirmed, is that the burden of proof never shifts. See, e. g., Judkins v. Carpenter, 189 Colo. 95, 97, 537 P.2d 737, 738 (1975) (en banc); Commercial Credit Corp. v. Harris, 212 Kan. 310, 312, 510 P.2d 1322, 1325 (1973). “The plaintiff has the burden of proof throughout the case. It must prove by a fair preponderance of the evidence, to the jury’s satisfaction, the material allegations of its complaint. The burden of proof does not-shift.” Midland Oil and Royalty Co. v. Schuler, 126 N.W.2d 149, 152 (N.D.1964). The reason why “[ljitigants have a substantial right in having the burden of proof properly placed,” Banks v. Banks, 8 N.C.App. 69, 70, 173 S.E.2d 631, 632 (1970), is obvious. As one court stated:
When the party having the burden of proof establishes a prima-facie case, he will prevail in the absence of proof to the contrary offered by the defendant. The defendant is not required to meet this prima-facie case by a preponderance of the evidence or by evidence of greater weight. It is sufficient if it equalizes the weight of the plaintiff’s evidence. The burden of maintaining the affirmative of the issues involved is upon the plaintiff and remains with him throughout the trial. If upon all the facts the case is left in equipoise, the plaintiff must fail. 20 Am. Jur., Evidence, Sec. 1251. [Midland Oil and Royalty Co. v. Schuler, supra, 126 N.W.2d at 153.]
In this case, the trial court instructed the jury that the defendant-employer had the burden of proving an agreement to the contrary of plaintiffs’ contention that they were entitled to compensation in lieu of accrued leave time beyond the 225-hour limitation. In fact, under established case law, the burden was on plaintiffs throughout the case to prove an agreement with the defendant in the first place which would en*828title them to compensation in lieu of leave time accrued without limit, since such was their claim. That the trial court misplaced the burden was of critical importance in light of conflicting testimony as to whether the employees had sufficient notice of the restriction on paid leave to make the 225-hour limit an enforceable part of their employment contract. If the jury concluded— as it may well have — that the conflicting testimony was about equally weighted, then it would have been obliged under the trial court’s charge to resolve the issue against the party with the burden of proof. In short, the NRA had a right to have the burden of proof properly placed, and it was substantially prejudiced by the instruction which misplaced it.
Any support for shifting the burden of proof which the majority claims to find in Jones v. District Parking Management Co., D.C.App., 268 A.2d 860 (1970), and in the other cases upon which the majority relies is purely illusory. The cases do not stand for the proposition, as the majority asserts (at 820), that “as a general rule, an employee who accrues but does not take vacation or other paid leave is entitled to monetary compensation for that leave upon discharge from employment absent an agreement to the contrary.” Rather, what the cases do stand for is that entitlement to pay in lieu of paid leave is wholly a contractual matter. There is an entitlement — if at all — only to the degree that the employer agrees to provide it and the employee, in accepting employment, agrees to the terms.3 The clear implication of the majority’s subtle contortion of the general rule is that, once an employee is allowed to accrue vacation leave rather than take it as it accrues, then that employee is entitled to accumulate leave indefinitely without regard to the reasonable expectations of the employer. Such a conclusion has no basis in logic or in law, nor is it supported by the cases relied upon by the majority.
In Jones v. District Parking Management Co., supra, the employee had testified without contradiction that his agreement with his employer provided for a one-week vacation with pay at the end of his first full year of service; that his paid vacations, which at the time of his discharge had increased to four weeks per year, were based on a March to March work year and were always taken the following summer; and that, at the time of his discharge, he had not yet taken any of the four weeks earned during the preceding year of service. 268 A.2d at 861. In other words, the employee in Jones claimed entitlement to vacation pay accrued in the year immediately preceding his discharge for cause.4 Similarly, in each of the cases cited by the majority the employees’ claim of entitlement was to leave accumulated in the year of, or immediately preceding, the employees’ separation from employment. See Smith v. Kingsport Press, Inc., 366 F.2d 416 (6th Cir. 1966) (vacation benefits for the year to be determined on date employees were on strike); In re Willow Cafeterias, 111 F.2d 429 (2d Cir. 1940) (one-week vacation earned but not taken as of date employer-company was adjudicated bankrupt); Harbridge v. Greyhound Lines, Inc., 294 F.Supp. 1059 (E.D.Pa.1969) (three-week vacation earned in year preceding employee’s discharge); Olson v. Rock Island Bank, 33 Ill.App.3d 914, 339 N.E.2d 39 (1975) (three-week vacation earned in year employee retired); Berteau v. Wiener Corp., 362 So.2d 806 (La.App. *8291978) (one-week vacation earned in year preceding employee’s discharge); Textile Workers Union v. Paris Fabric Mills, 18 N.J.Super. 421, 87 A.2d 458, aff’d, 22 N.J.Super. 381, 92 A.2d 40 (1952) (collective bargaining agreement terminated by union prior to date on which vacation pay for the year to be determined); Pfeifer v. A. F. Lowes Lumber Co., 206 Or. 115, 291 P.2d 744 (1955) (vacation earned in year in which old collective bargaining agreement expired and new agreement was put into effect); Valeo v. J. I. Case Co., 18 Wis.2d 578, 119 N.W.2d 384 (1963) (vacation pay for the year due under collective bargaining agreement which terminated that year). None of the cases squarely addresses the issue whether the right to accrue leave means the right to accrue leave indefinitely absent an agreement to the contrary, and the majority grasps at straws in order to reach such an absurd result.
To the contrary, it is obvious from the cases cited by the majority that the amount of vacation time to which an employee is entitled is determined by the terms of the employment contract. Entitlement to pay in lieu of vacation time is also a matter of contract. Marine Inspection Service, Inc. v. Alexander, 553 S.W.2d 185 (Tex.Civ.App.1977); Walters v. Center Electric, Inc., 8 Wash.App. 322, 506 P.2d 883 (1973); Lim v. Motor Supply, Ltd., 45 Hawaii 111, 364 P.2d 38 (1961). Moreover, an agreement providing that vacation time may be accrued and an employee compensated at separation for leave time earned but not taken is always subject to conditions or qualifications that are part and parcel of the agreement. Walters v. Center Electric, Inc., supra; Briggs v. Electric Auto-Lite Co., 37 Wis.2d 275, 155 N.W.2d 32 (1967); Valeo v. J. I. Case Co., supra. Accordingly, vacation time earned but not taken may only accrue for compensation purposes to the extent permitted under the contract. Walters v. Center Electric, Inc., supra.
In this case, the employees asserted that the NRA’s allowing them to accrue vacation time over the years created a vested right in them to payment in full for that time. “Since the plaintiffs’ rights depend upon the contract, we must examine its terms, not to make it speak where it is silent or contrary to what it says, but to discover what it does say.” Briggs v. Electric Auto-Lite Co., supra, 37 Wis.2d at 280, 155 N.W.2d at 35. In that regard, the evidence presented by the NRA was that the contract with its employees provided for pay at separation for all accrued annual leave time up to 225 hours (30 days).5 It was established that that was the policy of the NRA. Whether the notice of that policy was sufficient to bind the NRA’s employees to it was a jury- question. However, the employees’ contention that they were not bound by it — that they were, indeed, entitled to pay in lieu of leave without limit — was a material element of their case. The burden of proof properly started as theirs and remained theirs.
Nor, as noted, does the 225-hour limitation constitute an affirmative defense.6 By *830proving the existence of the limitation policy (including its recognition and acceptance by other employees of the NRA), the NRA met its burden of going forward with the evidence in its attempt to refute the employees’ case. In so doing, it properly was attacking the truth of the plaintiffs’ allegations and the burden was on the plaintiffs to disprove the existence of the limitation'. See Roberts v. Mitchell Brothers Truck Lines, 289 Or. 119, 611 P.2d 297 (1980) (a defendant may, under a general denial, offer evidence that refutes a plaintiff’s cause of action without being required to raise an affirmative defense); Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Alaska 1976) (in denying the existence of an element of the plaintiff’s case, the defendant does not assume the burden of proof); Wall v. Zeeb, 153 N.W.2d 779 (N.D.1967) (where defendant’s answer denies the allegations in plaintiff’s complaint, except as otherwise admitted, qualified, or explained, defendant does not assume burden of proof); Midland Oil and Royalty Co. v. Schuler, supra (same). Consequently, the trial court’s instruction, insofar as it placed the burden on the defendant to prove its denial of the allegations in plaintiffs’ complaint, was elearly erroneous. Banks v. Banks, supra; Wall v. Zeeb, supra; Midland Oil and Royalty Co. v. Schuler, supra.
I firmly am of the view that the proper disposition of this case would be to remand it for a new trial with proper instructions to the jury.
Ill
I would be remiss if I failed to register not only my disagreement with the majority’s disposition of this case, but moreover with the manner in which the majority seeks to impose its wishes upon the public for the future. Appellate courts, after all, are not legislatures. Our responsibility in deciding a case such as this begins and ends with a determination as to whether, based upon the specific factual situation before us, reversible error has or has not been committed. To the extent that our pronouncements in deciding such a case have binding future effect, that effect inexorably is related to the particular facts which have given rise to those pronouncements.
Not content with merely resolving the questions presented, the majority seeks to establish a rule which, if followed literally, would be superimposed upon all employment relationships in this jurisdiction which lack contractual certainty. Thus, the majority opinion states in part (at 821 ):
In summary, the rule of this jurisdiction is: (1) the right to accrue paid leave implies the right to compensation for unused leave upon discharge from employment, and (2) once a discharged employee has established the right to accrue leave and the amount of leave unused, the employee is entitled to compensation for it unless the employer sustains the burden of proving “an agreement to the contrary.” Jones, supra, 268 A.2d at 862.
That statement is flawed in several respects. Initially, I have explained above how Jones v. District Parking Management Co., supra, provides no support for any part of the majority’s resolution of this appeal. Beyond that, it is axiomatic that the majority may not impinge upon the contractual rights and duties of other employers and employees by in effect “legislating” an employment policy which it deems to be desirable. Additionally, the quoted statement is, of course, dictum. If such a policy were to be considered by a quasi-legislative body, it could be adopted only by affording a right to be heard by all interested parties. Certainly we are not free to adopt such a “rule,” which could have an impact on a *831wide variety of employment relationships not now before the court.7
This inevitably brings me to the question of what precedential effect the majority opinion may have. I conclude that it has none. The majority of this division of the court has no authority to alter the rule that the burden of proof begins and stays with the plaintiff in an action such as that before us. M. A. P. v. Ryan, D.C.App., 285 A.2d 310 (1971). The majority of the division has no authority to fashion a rule purporting to control other employment relationships and practices. Thus, the inescapable conclusion is that while the majority opinion does resolve this case, it disposes of it in a manner which is so patently flawed as to leave it a derelict floating without true future meaning on the jurisprudential sea. While the opinion may well cause problems in future litigation of this type, I am confident that perceptive trial judges will recognize and deal appropriately with both its shortcomings and its precedential limitations.
. I confess to wonderment at the majority’s position that the NRA “conceded” the former employees’ entitlement to the jury instruction which I consider to be fatally flawed. See 821-822. All that the NRA acknowledged was its policy of making financial compensation for unused leave time up to its limit of 225 hours; assuredly the NRA made no concession which went beyond that time limitation.
. The majority opinion states that the NRA’s contention that its employees were entitled to no compensation beyond the 225-hour limitation “is in the nature of an affirmative defense that must be pleaded and proved by the defendant-employer.” See 821. While that assertion unquestionably is an indispensable factor in the majority’s rationale, it reflects an unfortunate lack of understanding as to what constitutes an “affirmative defense” for pleading purposes. See, e. g., Super.Ct.Civ.R. 8(c).
. Some cases make a clear distinction between the right to accumulate vacation time and the right to receive compensation in lieu of vacation if not enjoyed. See, e. g., Lim v. Motor Supply, Ltd, 45 Hawaii 111, 364 P.2d 38 (1961). The distinction is immaterial in this case, since the NRA agrees that its employees have a vested right to pay in lieu of accrued leave upon separation up to the 30-day limit. I simply note that such an entitlement is not automatic, as the majority suggests.
. I am bewildered by the majority’s assertion (at 821) that the NRA’s answer to the plaintiffs’ complaint “was sufficient to trigger the Jones instruction.” The Jones case was tried without a jury; there is not a hint in this court’s opinion (which dealt with a claim for compensation for four weeks of current but unused leave) as to what might be an appropriate instruction in a jury case. (In this case, it appears that the trial judge simply gave an instruction proposed by the plaintiffs.)
. A company’s employee policy directives become contractual obligations when, with knowledge of their existence, employees start or continue to work for the employer. Dahl v. Brunswick Corp., 277 Md. 471, 475, 356 A.2d 221, 224 (1976).
. The “in the absence of express agreement to the contrary” language in Jones does not suggest otherwise. Jones does not say that absent an agreement to the contrary, an employee allowed to accrue leave may accrue it without limit. Rather, the quoted language, considered — as it properly must be — in its context, refers to the effect of a discharge for cause on the initial agreement. Thus, we concluded in Jones that the employer’s agreement to allow his employee to take his annual vacation during the summer following the year in which it was earned was not affected by the employee’s discharge for cause once the vacation had been earned. Similarly, in each of the cases relied upon the majority, “absent an agreement to the contrary” refers to the effect of a particular event upon the respective employment agreements otherwise providing for the accrual of paid leave. Accordingly, absent an agreement to the contrary, accrued vacation time for the year in question was not affected by discharge, Harbridge v. Greyhound Lines, Inc., supra; Berteau v. Wiener Corp., supra, by strike, Smith v. Kingsport Press, Inc., supra; Textile Workers Union v. Paris Fabric Mills, supra; Valeo v. J. I. Case Co., supra, by the cessation of business, In re Willow Cafeterias, supra, by *830retirement, Olson v. Rock Island Bank, supra, or by the effective date of a replacement collective bargaining agreement. Pfeifer v. A. F. Lowes Lumber Co., supra. None of the cases supports the majority’s fanciful theory that absent an agreement to the contrary, an employee may accrue paid leave virtually until doomsday and still take it with him. Cf. Walters v. Center Electric, Inc., supra (where there was no evidence to show the total amount of time which an employee might accrue, it was within the trial court’s discretion to find that employee’s accrual of three and two-thirds weeks’ vacation was reasonable).
. In a similar vein, the majority’s suggestion (slip op. at 18) that the employees could have resigned before becoming bound by the 225-hour limitation, and thereby have become entitled to payment for all accrued and unused leave, is a particularly attenuated type of dictum. (It also strikes me as being contrary to public policy.)