*3 HARRIS, FJERREN, Before MACK and Judges. Associate FERREN, Judge. Associate The National Rifle Association (NRA) appeals judgment from a entered on jury awarding verdict seven of its former $90,707.21, employees represent a total of ing payment for leave accrued unused dur ing their NRA tenure. NRA contends that (1) jury the trial court’s instruction to the impermissibly shifted the burden to NRA to prove that the were not entitled portion compensation for a of their un leave, (2) the trial court used and erred in verdict, denying NRA’smotions for directed verdict, judgment notwithstanding the trial, demonstrated, new in since NRA event, knew implicitly about—and thus to— policy limiting compensation an NRA termination. We con unused challenged clude that the instruction is con juris prevailing sistent with the rule diction. We also conclude trial denying court did not err in NRA’s directed with re post-verdict verdict and motions Ailes, Davidson, Baggett, spect appellees However, entry we order Joerg. notwithstanding the verdict de judgment Harper, nying damages appellees Warye, and Hines.1 I. 8,1976, NRA
On November implementing a reduction-in- employees, challenged reject 1. some of the testi- We also NRA’s contentions we assume that error, by (1) mony was such admission trial court committed reversible error admitted injustice appel- admitting testimony concerning employees’ did not cause a substantial “subjective feelings requiring Super.Ct.Civ.R. lant reversal. See conclusions” issue, damages jury declining give requested As we note that the NRA’s instruction only appropriate damages. evi- on the measure of Even awarded amounts consistent with the accrued from an management force reasons.2 prove salary to the date but each all accrued unused express to an separation, and also made a severance such entitlement reference length According on the individual’s based or uniform custom. employment plus any due un- NRA, misplaced amount the bur- the trial court sick, vacation, (including instructing used den proof (or leave) up days compensatory to 30 follows:
hours). A the affirmative of party who asserts This proving it. issue has the burden August six of the dis-
On carry by what generally he must burden plus who re- charged employees, another preponderance the evi- is termed a signed,3 suit for of contract to filed breach compensation for dence .... monetary recover the 30-day but unused leave excess of *4 compensation Leave time is form of jury paid by NRA. A trial be- maximum are for services and once the services on 1978.4 At the close of
gan October right the promised to secure rendered the case, plaintiffs’ the denied NRA’s court compensation vested as much as verdict. At the close motion a directed right other of wages receive or forms to evidence, again all the NRA moved once fixed, means ac- compensation. Vested verdict, trial for a directed which the court settled, crued, ab- absolute. In the verdict denied. The returned a award- con- expressed agreement to the sence of $90,707.21.5 plaintiffs damages totaling ing trary recover plaintiffs have to verdict, judgment The court entered on compensation. of the promised value motions for whereupon timely NRA filed contrary be agreement Such to the and, verdict judgment notwithstanding the defendant, National Rifle by shown alternative, The for a new trial. trial [Emphasis of America.... Association Pursuant an court denied both motions. to added.] among parties, deposit- agreement NRA NRA, re- As this instruction interpreted ed in States Government escrow United having from plaintiff-employees lieved the $120,000 with face Bonds a total value of prove the existence of their contractual pending stay judgment execution rights upon payment for unused appeal. this jobs. Secondarily, from their discharge assuming even the law of argues NRA
II. jurisdiction places the burden on the employee’s contends, first, to show the in order for a that once discharged monetary payment for accrued leave employee recover forfeit (i. e., only damages 30-day possible was em- Hines dence maximum. submitted showing ployee compensatory stipulation whose claim included total hours accrued above limit, alleged multiplied 225-hour leave. hourly salary receiving appellee rate each was permitted termination), upon partial court previously entered 4. The trial court theory appellant’s argue NRA’s favor, counsel denying summary judgment in NRA’s damages jury. to the 36-603(d) recovery § under D.C. Code discharge wages upon (covering payment The notice informed 2. severance upon suspension resignation “[tjhe National Rifle Association [was] work). making to im- a substantial force reduction prove operational efficiency on- and assure the to the seven individual awards The discharges strength.” going were financial The Ailes, $4,549.74; follows: John C. day effective the severance notices the same Davidson, $4,146.36; Baggett, William Rolfe E. were issued. Jr., $40,083.69; $3,505.89; Harper, Ste- John A. Hines, employee, III, Hines, $14,579.46; Joerg, re- 3. The seventh Steven Robert C. ven 25, 1977, February signed $20,184.77. from NRA on $3,657.30; Warye, Russell B. only up similarly paid for accrued leave was rights.6 to leave itself has been estab- We with the trial court’s lished, the employees hereby implicitly findings that Jones’ “conduct inimical [was] agreement, made such an contin- justi- employer], best interests of [his ued to work and receive fying (footnote discharge.” his Id. omit- knowledge payment of NRA’s limitation on ted). however, disagreed, We that “it .. . for unused leave termination. automatically should follow[s] [Jones] question A. The central is this: when an forfeit pay rights deferred vacation required is not to take vacation or already held, earned.” Id. We been accrues, paid other leave as it and thus has rather, agree- “that in the absence of an fired, unused leave at the time he or she is contrary ment to the the fact em- is that employee entitled to ployee discharged op- for cause cannot the unused in the absence of an deprive erate to him of pay earned vacation agreement or uniform custom to the con- rights.” (footnote omitted) (em- Id. at 862 trary? added). phasis jurisdiction, In this Jones v. District Jones, supra, squarely supports Co., Parking Management D.C.App., 268 employee’s gener contention here: as a (1970), A.2d controlling announced the rule, al who accrues but does Jones, rule. employee, sued not take vacation or other leave is his former employer salary for accrued monetary compensation entitled to for that testified, pay. earned He vacation upon discharge employment, contradiction, ab that his initial *5 agreement contrary. sent an Id. at employer provided with his for a one-week Accord, Press, Kingsport vacation 861-62. Smith v. pay year after his first full of service; Inc., 416, paid (which (6th 1966); that his vacations 366 F.2d had 419 Cir. In re Cafeterias, per year by Inc., 429, increased to four weeks the Willow 111 F.2d 432 discharge) time of his on (2d based a 1940); Harbridge Greyhound Cir. v. Mareh-to-March year always service and Inc., Lines, 1059, (E.D.Pa. F.Supp. 294 1065 summer; that, had been taken in the and 1969); Corp., Berteau v. Wiener 362 So.2d discharge, the time of his he had not taken 806, 808 (La.App.1978); Textile Workers during of the vacation time earned Mills, Inc., Union v. Paris Fabric 22 N.J.Su previous Jones, year. March-to-March su- per.App.Div. 381, 384-85, 40, 42 pra at 861. (1952); Co., Pfeifer v. A.F. Lowes Lumber 115, 123, 744, (1955); 206 Or. 291 P.2d 748
The trial court found that Jones had been
Co.,
578,
discharged
good
Valeo v. J. I.
18 Wis.2d
cause and ruled that he
Case
585-
thereby
86,
384,
(1963).7
pay
had forfeited his vacation
119 N.W.2d
388-89
It fol-
185,
following
(Tex.Civ.App.1977) (same);
6. The trial court had credited the
S.W.2d
188-89
Elec., Inc.,
322,
discharge:
Wash.App.
evidence on the
Walters v.
cause of
Center
327,
883,
(1973) (same).
506 P.2d
These
and two other former
of
[Jones]
premise
perceived
holdings
cases
a
their
appellee
incorporated
competitive
a
privilege
“distinction
a
to
between
accumulate
parking company
January
year
year,
right
vacation time from
to
and a
to
company had thereafter entered into a lease
paid
be
enjoyed.”
the accumulated vacation
not
operate
operate
parking
pre-
to
and did
lot
Lim,
supra
is: the to of 225 accrue to the aforesaid limitation be accumu- compensation to for unused leave hours maximum which could the period complet- day id. at 44. But of been the issue. See 364 P.2d at after that leave has why issue we are concerned with a much narrower no same result ed. There is reason that compensation any, rights, employee the of an here: employee is should not be the fired, when an norm discharged contrary or she understanding. who is before he a absent taken accrued and thus has has vacation leave employment more to do so. no time in which be, example, qualification might a 8. Such Presumably employer permitted the if not has understanding payable leave is an only accrued encouraged employee the rather than to accrue off; compensated otherwise it in time (while continuing take vacation to work leave, might how- be lost. Or that accrued pay) premise employee will on the compensable, into can forward ever be carried employed enough long In- to take it. remain year only up specified a maximum. the next deed, employer primary over has control (1) language employment the terms and burdens, allocating the courts consistent- 9. “In informing employees their all material attempt distinguish ly the constitu- between benefits; rights, obligations, compensation, and statutory promise a com- ent elements of (2) approval requests all to use mand, proved by party who which must be time; employee’s exact termi- statute, matter on the contract or relies Valeo, supra See Wis.2d at nation date. by proved exception, his be in 119 N.W.2d It follows adversary.” 337 at § McCormick on Evidence cases, discharge the one we better rule is omitted). (2d 1972) (footnote Cf. 5 ed. Jones, adopted supra, putting the bur- in (3d 667(A) at 150-51 Williston on Contracts § den limiting compensation show an on 1961) (matters pleaded be of defense must ed. accrued but unused proved aas the insurer to be available voluntarily Typically, who leave. defeating recovery an insurance means for on work, employment stop take all will terminates policy). (paid) resign effective unused by any plaintiff, lated one paragraph (30 8 is of 225 hours days), employees those who [Emphasis otherwise admitted. continued to work compensa- and receive added.]10 knowledge tion with of NRA’s leave policy This concession plain- was reflected in the must be agreed deemed to have to it. See tiffs’ evidence. Each testified at 471, 476, Dahl v. Brunswick Corp., 277 Md. trial that NRA had hired him full-time and (1976); Day, Borden v. promised, had for his serv- 110, 111, Okl. 168 P.2d ices, salary plus paid leave.11 The evi- dence showed that each increment of leave agree general A. We with the that an employee accrued but did not use proposition that once an learns during particular year was carried for- about policy limiting compensation a new ward his subsequent on leave record into upon termination, for unused leave but years. employee’s Each bi-weekly pay stub elects to stay job accept compen on the imprinted was with the number of accumu- sation, that decision is sufficient imply lated, unused leave hours and also con- working subject to continue admonition, limitation, tained the without to the new limitation. general But “RETAIN THIS STATEMENT —IT AIS proposition may be limited the circum RECORD OF YOUR EARNINGS AND stances. place, In the first without DEDUCTIONS.” employee’s express agreement to be bound (con- We conclude that NRA’s answer by a change policy, the employer must by plaintiffs’ firmed showing) was suffi- prove employee’s knowledge that the cient trigger the Jones instruction that change complete enough was for the trier NRA, employer, as the prove must either find, fairness, of fact to employ that the employee’s agreement existence of each ee’s job decision to remain on the to forfeit portion of his unused leave premised acceptance policy. the new termination, or responsible be held to com- If, for example, policy change elimi- pensate employee for all of (e. rights g., nates compensa- it. leave),
tion for previously accrued
the trier
III.
may feel the need for more conclusive evi-
dence
employee accepted
NRA asserts that the trial court nonethe-
change
open
he or
than
she would
eyes
granted
less should have
its directed verdict
employer merely
in a case
impos-
where the
post-verdict
motions because NRA did
Second,
prospective
es
policy
restrictions.
prove,
question,
changes affecting
employment
conditions of
compensable
to a limitation on
and,
will vary
complexity;
whatever
Specifically,
points
unused leave.
nature,
their
will have different
im-
testimony by
six of the seven
*7
pacts
depending
on
on
employees
individual
admitting
they
that
each had received an
Consequently,
circumstances.
the answer
NRA-prepared
announcing
document
a 225-
question
employee, upon
to the
an
hour
whether
employees,
limit. Two of the
more-
over,
learning
change,
implicitly
of
has
knowing, prior
policy
admitted
a
to
of a
remaining
job
to
on the
cannot
then-prevailing
45-day
limit on
Thus,
NRA,
carefully exploring
leave.
be
according to
even if
answered without
Jones,
trier,
supra,
place
example,
the facts. The
does
the burden on NRA
to prove
agreement by
period
an
the
a
employees to
leave room for at least
brief
of
forego
during
employee may
accrued but unused leave in excess
time
the
re-
which
Consequently,
Warye
example,
10.
NRA admits that
the dis-
11. For
Russell
testified that he
charged employees
compensa-
are entitled to
had
to accrue
been told he would “be able
portion
tion
leave;
of
for at least a
their accrued
premise apro-
which was not used.” William
[vacation time]
rely
NRA does
on the
the
not
Davidson testified he “was told that
annual
Lim,
pos
supra,
of
that the
to
be
of
if I were
leave would
a form bonus ...
for.
contingent
actually taking
leave is
on
time off
terminated.”
employed.
while still
acquiescence
to imply
of
225-hour limit
job
prejudice,
while
main on
trier’s
depend
will
on the
personal
policy
his or her
alternatives.
in that
pondering
policy change
who
of a
circum-
employee
totality
learns
of the
An
evaluation of the
fairness,
cannot,
stances,
be deemed
Monday
on
in
of the
including
completeness
accepted
change merely by
to have
policy and
employee’s knowledge about the
Tuesday. On
reporting to work on
the oth-
em-
reasonably required by that
the time
hand,
point
come when an em-
er
will
The
options.
his or
ployee to evaluate
her
job too
stayed
long,
has
on the
ployee
jury
so instructed.12
should be
knowledge
change,
permit
to
a find-
argue
they were
employees
B. The
accepted
he or she
the new
ing that
has
con-
limit.13 NRA
unaware
the 225-hour
of
bright
developed
can be
policy. No
line test
conclusively demon-
tends
evidence
for this determination.
Factors such as
a
they
presents
were. This
strates
to be
magnitude
rights
of vested
surren-
Borden, supra
See
jury question.
classic
employee’s
assertion of a
dered
112-13,
648^9.
197 Okl.
168 P.2d at
up
time to
his or
mind
need for
make
her
will be relevant here.
determining
trial
whether
In
for a
motions
granted
court should have
summary,
question
whether
notwith-
employee
knowledge
judgment
directed
or for
an NRA
had sufficient
verdict
outlining
plaintiff
ad-
If
a
The trial
instructions
a
received memorandum
12.
court’s
and failed
to all N.R.A.
could find an
dressed
read
circumstances which the
employee’s
actually
then be
implied
read it he can
agreement
it or to
to the 225-hour
knowledge
the contents
found to have
of
specifically
deal
with all
limit did not
the rele-
However,
of that date.
vant variables we have described.
plaintiff
If
was aware
the defendant’s
Dahl,
of
because the instructions followed the
pra-Borden,
su-
general
limiting
policy
of unused
amount
supra
approach and were no less
on ter-
leave
would be
(in
to the
fact
were
favorable
he
work for
mination and
continued to
prescribed),
favorable
we
more
than we
you
accepts pay
his work
defendant and
complaint
conclude that NRA has no basis
may
agreed
impliedly
as evidence that he
use this
ground.
on that
upon
comply
depending
therewith
Specifically,
(quoted
following its instruction
totality
the
his
the facts
and circumstances
above) placing
in the text
the burden
NRA
on
particular
case.
“agreement
contrary”
to show the
feating
de-
thought
plaintiff
What a
the notation
claim,
employees’
the trial court
paycheck
necessari-
his
ly
stub means does not
jury:
told
so as to make what
bind the defendant
contrary might
Agreement to the
be shown
plaintiff thought
part
employment
of his
by knowledge
employer’s
regu-
of an
rules or
defendant,
simply
but it is
contract with
acquiescence
lations and
or
there-
you
con-
one
bit of evidence for
additional
particular
usage
em-
in. Custom and
sider.
may
employment
ployer
part
form
contract
plaintiff
known to the
rather
(1)
Appellees’
states
trial memorandum
knowledge
of the rule
actual
prior
accumu-
and that
could
question. In this case the two hundred and
time,
days
only up
late
all
to 45
leave
twenty-five
number of accu-
hour limit on the
dropped
their rec-
excess hours
leave
which he could be
mulated
paid
hours for
ords;
policy was
and with such knowl-
termination
changed
adoption of a new
connection with
—in
edge,
expressly
either
conduct from
permit
disability plan
unlimited accrual
—to
“
implied, agreed
time,
be
can
‘paid
NRA re-
at that
leave hours’
questions
comply
be re-
therewith are
stored
hours
dropped
records all excess
previously
solved from the facts
circumstances
*8
earned but
been
particular
policy. Appellees
each
case.
con-
the old
under
plaintiff
policy
of a
If a
was aware
memorandum
to be
“intended
leave
cede that NRA
by
subject
proviso
as to how much
issued
unused leave he would be
defendant
that no more than
to a
separa-
paid
paid
(30 days)
on
accrued
hours
leave
of the unlimited
employee upon
paid
to believe such
tion or had reasonable cause
be
hours could
contend,
separation
ever,
They
how-
and continued to
NRA.”
a memorandum existed
from
accepts
by
pay
they
limita-
not bound
for the
“that
are
work
defendant
paid
by
pay
hours
tion
for accumulated
work he will be bound
terms
his
adequate
part
employ-
measures
not take
of his
because NRA did
such memorandum as
of its existence.”
to inform [them]
contract.
ment
verdict,
standing
we must
NRA president
decide
had confirmed this under-
person,
whether a reasonable
viewing the
standing. Because the 225-hour policy in
light
matter
in the
most favorable to the
paragraph
the last
“stay
bonus”
employees, would be unable to reach a ver- memorandum was
closely
so
tied to the
See,
dict in
employee’s
one or more
favor.
move,
Colorado
jury reasonably
could
g.,
e.
Calloway
Charge Service,
v. Central
conclude that these three
justifi-
259,261,
142 U.S.App.D.C.
440 F.2d
ably ignored
it. Absent
other sure
contrast,
In
our review of the trial
imputing
basis for
a belief that
the limit
motion,
court’s denial of the new trial
when
them,
applied
supra,
see note 12
the jury
based on a
against
claim that the verdict is
find,
reasonably could
under all the circum-
evidence,
weight
of the
“is limited to
stances,
Ailes, Baggett,
and Davidson
determining whether
the trial court has
had not
working subject
to continue
Bernard,
abused its discretion.” Johnson v.
Nor,
policy.
record,
to that 225-hour
on this
D.C.App.,
(1978).14
can we find an abuse of trial court discre-
evaluations,
making
note,
these
we
tion in rejecting NRA’s claim that
jury
first,
six
appellee-employees
of the
verdict for the three
against
(other
Joerg)
than
they
testified
did receive
weight
evidence. Accordingly,
“stay
(or
bonus” memorandum
learn of its
Ailes,
appellees
Baggett, and Davidson are
contents)
sometime
the summer of 1976.15 entitled
compensation
for all leave ac-
12, 1976,
August
That memorandum dated
discharge,
crued as of their date of
“in the
announced
proposed
NRA’s
move to Colora-
absence of an
to the contrary.”
Springs (projected
May
1978),
do
Jones, supra
Warye and had an addi- hurdle, anticipated work they receiving ably, Harper Warye admitted tional while; 12,1976 long August ing memoran- for the 10%bonus for a “stay bonus” Ailes, Davidson, move, according August Baggett, dum. Unlike Colorado memorandum, “currently estimat Harper testify they was Warye and did not addition, Harper May to believe memorandum as 1978.” had reason this ed actually contemplated have inapplicable they testify Warye may to them. Nor did pay, full they taking dur- may about effort have made their may employ. NRA’s There they month while still in ing period the three before why they (on 1976) still other reasons have been were November “stay Whatev bonus” terms. rights their all accumulated preserve unfortu example, explanation inform however they For did not er leave. —and find choice turned out to be—we continuing to work nate their they NRA did pending a basis for conclusion that agreeing to the 225-hour limit no (and only) receiving time the discussion the first under Both admitted an undated Harper (which Compensatory Employee Leave neither Booklet Benefits and Procedures accumulated), pages 70’s”) Warye (Harper early after five received it “in nor leave. The specifically upon payment of vacation and sick referred 225-hour limitation the discussion booklet to a Compensatory “All Leave accu- ter- stated: accumulated testified, your employment. Harper will be added on to normal mulated mination year. carry year however, interpreted and will over reference accrual that he Association, you Upon will only “compensatory separating from applying terpretation in- leave”—an hourly readily paid your leave accumu- rate for all could be lated a reasonable up accepted, appeared to 225 hours.” limitation *10 limit, exchange of that for the Accordingly, prospect make the choice.17 we must enter judgment order the trial court to for job. argument of a NRA’s better NRA notwithstanding NRA verdict as compelling here is more than in the even Warye.18 Harper and Harper Warye. Accordingly, cases of we judg- must order the trial court enter appellee Finally, presents Hines notwithstanding verdict ment in favor during still case. different Sometime of NRA Hines’ respect with claim. fired summer of its Director of Affairs; thereafter, Public soon Hines was appointed Acting Director. Hines found a ÍV. copy “stay bonus” memorandum in conclusion, affirm the we trial court’s office former Director’s and thus be denial of for a NRA’s motion directed ver- came aware of the 225-hour limit on com dict, notwithstanding verdict, judgment pensation leave upon for accrued termina Ailes, and a appellees Bag- new trial as to tion at least em employment, of for those Davidson, Joerg, gett, and thus confirm ployees subject to that memorandum. However, to them. we awards as testimony Hines’ makes clear he antici entry judgment reverse for and remand
pated staying with NRA Di (hopefully as notwithstanding for NRA the verdict as to Affairs), rector of Public he did and that appellees Warye, and Hines. Harper, February 1977, leave until when he So ordered. resigned ap after someone else had been pointed permanent as His aware Director. ness limit of the 225-hour was enhanced HARRIS, Judge, dissenting: Associate controversy over limit once other majority opinion I consider the be sore- employees early Novem ly ways, flawed in a number and so ber 1976. I conclude that respectfully dissent. Since circumstances, these no reasonable Under necessitates instructional error reversal
juror could conclude that Hines had not trial, my new dissent rather nar- limit as accepted the 225-hour a condition of rowly focused. continuing employment. can be no There doubt that Hines knew 225-hour limit I being generally applied In a by NRA. Initially, briefly refer to I would the na- February protesting memorandum underlying problem, ture of (there protest is no earlier limit seems to be somewhat me to obscured record), acknowledged he the “225 hours opinion. Appellant the majority National being as the currently used NRA standard.” (NRA) a policy Rifle Association Moreover, job long on the as by staying employees up to accrue to a permitting its “stay he seeing after bonus” memo- did (30 days) total of in unused annu- 225 hours August learning randum in how time, they al for which would be applied limit was 225-hour compensated upon separation the as- discharged in November Hines must total, Beyond sociation. that 225-hour be deemed as a matter law to provision for for agreed losing accrued leave in excess there was no to risk Warye party Harper argue in the did not NRA 18. moves alternative Whenever notwithstanding “stay judgment bonus” verdict or for its deceived motions, trial, memo; a new trial court denies both nor did contend that NRA created “stay policy, appellate court concludes was error term of the bonus” material violated, deny judgment, by estimating appellate a move to the motion which it later (1) entry judgment May firing may: court but in No- order Colorado in them trial; moving (3) Presumably, party; a new order if an vember 1976. allegation, probative remand the trial court to determine whether it would be made such an Miller, Wright question there can be should be a new trial. & whether supra, give compensable up § 2540 at 617 to have said accrued leave. *11 (en banc); P.2d by majori- leave time. As noted the 738 Commercial unused Harris, 310, 312, lay employees. 212 ty, Corp. NRA did off 80 Of Credit v. Kan. them, brought seeking payment plaintiff six suit 510 P.2d 1325 “The of the the proof throughout unused leave time in excess 225-hour has the of burden By implication, of by preponder- limitation.1 obvious 74 It prove case. must fair join evidence, did not in the the satisfac- jury’s ance of the suit. tion, such a allegations the of its com- material proof plaint. burden of does not-shift.” The temporarily this dissent is at least Since Schuler, 126 Royalty Midland Co. v. Oil and opinion majority from the separated (N.D.1964). reason N.W.2d The directed, appropriate which it is it is why right have a substantial “[ljitigants the quote portion jury the relevant of in- having proof properly of the burden which I struction consider to constitute re- Banks, 69, 70, placed,” N.C.App. Banks v. versible error: (1970), As 173 S.E.2d is obvious. compensation is Leave time form of one court stated: for services and once the services are having When the burden of party the right the proposed rendered the to secure proof case, prima-facie he establishes compensation is much vested as as the prevail will the proof in the absence of wages to receive or other of forms the The contrary by offered defendant. fixed, compensation. means Vested ac- required to meet defendant is crued, settled, In and absolute. the ab- prima-facie of by preponderance case expressed agreement sence of the con- greater the evidence or evidence of trary plaintiffs have a to recover weight. equalizes the It is sufficient it compensation. value of the promised the weight plaintiff’s The evidence. agreement contrary to the be Such maintaining burden of the affirmative of defendant, by the shown National Rifle upon plaintiff involved is issues Association America... . throughout and remains with him the tri- II If left in upon al. all the facts the case is equipoise, 20 Am. plaintiff must fail. instruction, That my opinion, was Jur., Evidence, Sec. 1251. Oil [Midland clearly placed erroneous in that it the bur- Schuler, supra, v. Royalty Co. proof upon (NRA) den of the defendant N.W.2d at plaintiffs’ 153.] defeat the contentions to their alleged majority opinion entitlements. The case, In this the trial instructed the court compounds by approving that error the trial jury defendant-employer had the giving court’s of the instruction. Since burden proving an such a result flies in the face of hundreds of contrary plaintiffs’ contention that law, years majority of civil I consider the compensation in lieu of entitled to opinion to wholly be unsound on this issue.2 beyond lim- time the 225-hour law, fact, itation. under established case
One of the most
In
fundamental
tenets of
reaffirmed,
law,
plaintiffs throughout
consistently
civil
burden was on
is that
See,
prove
proof
the burden of
shifts.
case to
an
with the de-
g.,
never
e.
95, 97,
Carpenter,
place
fendant
en-
Judkins v.
189 Colo.
in the first
which would
majority’s
majority opinion
I
2. The
the NRA’s
1.
confess
wonderment at
states that
position
its
were entitled to
NRA “conceded”
former
contention that
compensation beyond
employees’
no
limita-
the 225-hour
entitlement to
instruction
fatally
821-
tion “is in
nature of an affirmative defense
which I consider
flawed. See
to be
acknowledged
proved by
pleaded
defend-
822. All that
must be
the NRA
compensation
ant-employer.”
policy making
See
While that asser-
factor
its
financial
unquestionably
indispensable
hours;
tion
up
leave time
limit of 225
unused
to its
rationale,
majority’s
in the
tunate
an unfor-
assuredly
reflects
the NRA
no concession which
made
understanding
consti-
lack of
as to what
beyond
went
limitation.
time
pur-
pleading
tutes
“affirmative defense” for
See,
8(c).
poses.
g., Super.Ct.Civ.R.
e.
title
them to
in lieu of leave
accumulate leave indefinitely without
re-
limit,
time accrued without
since such was
gard
expectations
to the reasonable
their claim.
misplaced
That
trial court
employer.
a conclusion
Such
has no basis in
importance
burden was of critical
law,
logic
supported
or in
nor is it
by the
light
conflicting
testimony as to whether
cases
majority.
relied
the employees had sufficient
notice
Parking
v. District
Management
Jones
*12
paid
restriction on
leave to make the 225-
Co., supra,
employee
had testified with
hour limit an
part
enforceable
of their em-
agreement
out
that his
contradiction
with
ployment contract.
If the jury concluded—
provided
his
for a
employer
one-week vaca
may
as it
well
conflicting
have —that
tion
pay
at the end
his first full
testimony
equally weighted,
was about
then
service;
year
paid vacations,
his
that
it
obliged
would have been
under the trial
discharge
which at
the time of his
charge
court’s
to
against
resolve the issue
per year,
increased to four weeks
were
the party
proof.
with the burden of
year
based on a
to March work
March
short,
right
NRA had a
to have the
summer;
always
following
taken the
proof
burden
properly placed,
and it was
that,
discharge,
at the time of his
he
substantially prejudiced by the instruction
yet
had not
taken
of the four weeks
misplaced
which
it.
during
preceding year
earned
of service.
Any support
shifting
burden
words,
829
(one-week
year
subject
qualifications
to conditions or
1978)
vacation earned
agreement.
discharge);
parcel
Textile
Wal
preceding employee’s
part
are
Inc.,
Mills,
Electric,
supra; Briggs
18
v. Paris Fabric
ters v. Center
Workers Union
458,
Co.,
275, 155
aff’d,
37
A.2d
22 N.J.
Electric Auto-Lite
Wis.2d
N.J.Super.
87
v.
Co.,
(1967);
v. J. I. Case
(1952) (collective
40
N.W.2d 32
Valeo
Super.
A.2d
union
vacation time earned
bargaining
supra. Accordingly,
terminated
only
compen
accrue for
prior
pay
may
to date on
vacation
for the
but not taken
permitted un
year
determined);
purposes
F.
sation
the extent
to be
Pfeifer v. A.
v.
Elec
Co.,
der the contract. Walters
Center
P.2d
Lowes Lumber
206 Or.
tric, Inc., supra.
(1955) (vacation
year
earned in
in which
bargaining agreement expired
old collective
case,
In this
asserted
put
effect);
and new
into
allowing them to
vacation
the NRA’s
accrue
Co.,
v. J. I.
Valeo
Case
Wis.2d
years
time over the
created
vested
(1963) (vacation pay
for the
N.W.2d
in them to
in full for that
time.
*13
year
agree
bargaining
due under collective
plaintiffs’
rights depend upon
the
“Since
year).
which
None
ment
terminated
contract,
terms,
the
we must examine its
squarely
of the cases
addresses the issue
it
speak
not to make
where it is silent
right
whether the
to accrue leave means the
contrary
says,
to what
it
but to discover
right
indefinitely
to accrue leave
absent an
v.
Briggs
what it does
Electric Auto-
say.”
contrary,
majori
agreement
the
Co.,
280,
supra,
Wis.2d
155
Lite
37
at
grasps at
in order
such
ty
straws
to reach
regard,
N.W.2d at 35. In that
the evidence
an absurd result.
by
NRA was that
the con-
presented
the
provided
its
at
employees
pay
tract with
it is
contrary,
To the
obvious from the
separation for
annual leave time
all accrued
by
majority
cases cited
that the amount
(30 days).5
was estab-
up to 225 hours
It
an employee
of vacation time to which
is
policy
lished that that was the
of the NRA.
by
entitled
determined
terms of the
was suffi-
policy
Whether the notice of that
employment
pay
contract. Entitlement
employees
to bind
to it was
cient
the NRA’s
in lieu of vacation time is also a matter of
However,
jury- question.
employees’
Service,
v.
Inspection
contract.
Inc.
Marine
they
by
contention that
not bound
Alexander, 553
(Tex.Civ.App.
185
S.W.2d
indeed,
were,
pay
entitled to
it —that
Electric, Inc.,
1977); Walters
8
v. Center
limit —was a mate-
in lieu of
without
(1973);
Wash.App.
I am of the view proper of the majority’s appeal. resolution of this disposition of this case would be to remand Beyond major- it is axiomatic that the it for a new proper trial with instructions to ity may not impinge upon the contractual the jury. rights employers and duties of other employees by “legislating” in effect an em-
Ill ployment policy which it deems to be desir- Additionally, quoted is, I would able. register be remiss if I failed to statement course, not only my disagreement policy dictum. If such a majori- with the were to ty’s disposition case, by quasi-legislative of this but be considered body, moreover it with the manner adopted only affording in which the could be majority seeks impose its public parties. wishes to be heard by all interested Cer- courts, for the Appellate all, future. tainly after adopt we are not free to such a are legislatures. “rule,” not responsibility Our impact could an on a
retirement, Bank, supra, Olson v. Rock Island and still with take it him. Cf. Walters v. Cen- replacement Electric, Inc., supra (where the effective date of a collec- ter there was no bargaining agreement. tive Pfeifer v. A. F. evidence to show the total amount of time Co., supra. accrue, employee might Lowes Lumber None of the cases which an it was within supports majority’s theory employ- fanciful that ab- the trial court’s discretion to find that contrary, sent an to the an ee’s accrual of three and two-thirds weeks’ may virtually doomsday reasonable). accrue until vacation was FERREN, and GAL Judges, Associate relationships variety employment wide Judge LAGHER, Retired.** Associate before the court.7 not now question inevitably brings me This ORDER majority precedential effect
of what has have. I conclude it opinion may PER CURIAM. majority of this division of none. The on consideration This cause came alter the rule that authority has no court banc, rehearing en appellant’s petition stays proof begins and with the burden of the court majority appearing it as that plaintiff in an action such before peti- granting in favor has not voted Ryan, D.C.App., A. P. v. us. M. tion, it is the division has majority The authority purporting appellant’s petition a rule no fashion ORDERED that employment relationships hereby is denied. rehearing control other en banc Thus, inescapable practices. conclusion majority opinion does re- that while FERREN, whom Judge, Associate case, in a disposes of it manner KELLY,
solve this NEWMAN, Judge Asso- Chief as to it a patently which is so flawed dissenting: Judge, join, ciate floating true future mean- derelict whether presents question This case sea. ing jurisprudential on the While an actionable an will states opinion may problems well cause future against requires who him claim am confident that litigation type, of this I proceeding administrative testify in an recognize judges trial will perceptive and then brought against employer, its appropriately with both shortcom- deal truth testifying fires him in retaliation precedential limitations. ings and its fully against employer’s interests. opinion and unpublished memorandum of this held that
judgment, a division Court claim. I dis did state a petition of this because sent from the denial *15 im presents question “exceptional 40(c). requires R. It portance.” D.C.App. consideration, division of en banc for the presumably this considered itself court * IVY, Appellant, C. Sherman holding previous decisions bound employment contract of any party to an v. it for may terminate indefinite duration COMPANY ARMY TIMES PUBLISHING Res Taylor Greenway v. reason. See Joseph Varga, Appellees. taurant, Inc., A.2d 211 D.C.Mun.App., 173 No. 79-278. Ernst, D.C.Mun.App., (1961); v. Pfeffer (1951). A.2d Appeals. Court of District Columbia law years For it has been the March 1981. retali- may not jurisdiction that a landlord reports who KELLY, by evicting a tenant at will Judge, ate NEWMAN, Chief Before housing in the tenant’s HARRIS,* violations NEBEKER,* MACK* code KERN, * vein, majority’s suggestion merits division. Denotes similar In a 18) op. (slip could have that the ** becoming resigned Judge Gallagher 225- bound before was an active mem- Associate limitation, thereby become enti- voted to hour on the date the court ber deny the court publication. petition and unused all accrued but retired before tled type particularly of dic- attenuated is a * being contrary (It me as also strikes Ryan, D.C.App., tum. v. See M.A.P. public policy.)