Cite as 2015 Ark. App. 470 

## ARKANSAS COURT OF APPEALS

DIVISION IV No. E-15-149

STEVEN DYER APPELLANT
V. DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, and WAL MART APPELLEES Opinion Delivered: September 9, 2015
APPEAL FROM THE ARKANSAS BOARD OF REVIEW [NO. 2015-BR-00223]

REVERSED AND REMANDED

WAYMOND M. BROWN, Judge Appellant Steven Dyer appeals the deci sion of the Arkansas Board of Review (Board) denying him unemploymen t benefits and affirming that he was discharged from
last work for misconduct in connection with the work. We reverse and remand for an
award of benefits. Dyer began working as a stocker at Wal- Mart in 1999. When he was hired, he was presented with the employer’s “Associate Arrests and Convictions Policy,” which provided that employees were subject to susp ension for arrests the employer deemed to be sufficiently job-related. On November 19, 2014, Dyer was arrested and charged with Third Degree Domestic Battery following an al tercation with his estranged wife. He was suspended. The Department of Workforce Services issued a Notice on December 22, 2014, denying Dyer benefits on finding that he wa s suspended for misconduct. He appealed toCite as 2015 Ark. App. 470

2 the Appeal Tribunal and th en to the Board, both of which affirmed the denial of benefits. He appeals to our court now. On appeal from the Board, we do not conduct a de novo review; instead, we review the evidence and all reasonable inferences deductible therefrom in the light most favorable to the Board’s findings of fact. 1 We will affirm the Board’s findings if they are supported by substantial evidence, which is su ch relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 2 Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether it could have reasonably reached its decision based upon the evidence before it. 3 In the instant case, Dyer’s suspension du e to misconduct involved an off-duty activity. In order for a claimant’s off-duty activities to constitute misconduct connected with the work, the employer must show, by a preponderance of the evidence, that the employee’s conduct (1) had some nexus to the work, (2) resulted in some harm to the employer’s interests, and (3) was in fact cond uct which was (a) viola tive of some code of behavior contracted between employer an employee, and (b) done with intent or knowledge that the employer’s interests would suffer. 4

1 West v. Director , 94 Ark. App. 381, 231 S.W.3d 96 (2006).

2 Id

.

3 Id

.

4 Feagin v. Everett , 9 Ark. App. 59, 696 S.W.2d 839 (1983).Cite as 2015 Ark. App. 470

3 In affirming the conclusions of the Appeal Tribunal, the Board reasoned that a nexus existed between Dyer’s off-duty activity and his work because his arrest for a violent crime showed that he could potentially have been a danger to coworkers and customers at Wal-Mart. It further opined that public knowledge of an employee’s arrest would hurt the interests of the employer because customer s and coworkers might question their safety. Finally, the Board noted the employer’s “Asso ciate Arrests and Convictions Policy” to satisfy the third prong of the aforementioned test, that Dyer’s conduct was violative of some code of behavior contracted between him and the employer. Here, the Board’s reasoning in denying Dyer benefits lies in direct contravention to our holding in Baldor Electric Company v. Arkans as Employment Security Department

. 5 In Baldor , we affirmed the award of benefits to an employee who had b een discharged after pleading no contest to his second charge of domestic battery. He had been terminated pursuant to the employer’s past practice of terminating employees who plead guilty to or who were found guilty of a felony. Similar to its analysis in the instant case, in Baldor , the Board found that there existed a nexus between the employee’s conduct and the employer’s desire to promote a safe workin g environment. However, and despite the fact that the employer had a past practice of terminating employees guilty of a felony, the Board did not find that the employee’s off- duty conduct harmed the employer or was done with the intent or knowledge that the employer’s interests would suffer. Accordingly, it awarded benefits.

5 71 Ark. App. 166, 27 S.W.3d 771 (2000).Cite as 2015 Ark. App. 470

4 The facts in Baldor and the facts here are nearly identical except that the employee
in Baldor pleaded no contest twice to domestic battery during his short, two-year employment, whereas it occurred once with Dyer during a course of employment lasting approximately fifteen years. Although Dyer’s c onduct likely violated a reasonable standard of conduct his employer could expect of him, upon review of the record, we do not find
substantial evidence that he acted with th e intent or knowledge that his employer’s interests would suffer or that his behavior would harm his employer. Such off-duty conduct may be sufficient re ason for an employer to sever ties with an employee, but it does not rise to the leve l of misconduct in c onnection with the work, and therefore, cannot be used as a basis for the denial of benefits.
We reverse and remand for an award of benefits.
G LADWIN , C.J., and V IRDEN , J., agree. Steven G. Dyer , pro se appellant. Phyllis Edwards , Associate Counsel, for appellee.