FOR PUBLICATION

     IN THE COURT OF APPEALS OF INDIANA

BRIAN K. DOUGHTY,                )
                                      )
Appellant-Claimant,                   )
                                      )
vs.                                   )    No. 93A02-0206-EX-472
                                      )
REVIEW BOARD OF THE DEPARTMENT OF     )
WORKFORCE DEVELOPMENT,                )
                                      )
Appellee,                             )
                                      )
        and                           )
                                      )
SCHWAB CORPORATION,                   )
                                      )
Appellee-Employer.                    )

     March 7, 2004

     OPINION - FOR PUBLICATION

BROOK, Chief Judge

“Under this two-tier standard of review, the Review Board’s ‘finding of ultimate fact’ is the conclusion, and the ‘findings of basic facts’ are the premises from which the Review Board deduced its conclusion.”

“At the first level of review, we examine only the relationship between the premises and the conclusion and ask if the Board’s deduction is ‘reasonable.’ The inquiry at this first level of review may be termed a ‘question of law.’

At the second level of review, we inquire into the nexus between the premises or findings of basic facts and the evidence presented to determine if the evidence justified those findings.”

When an employee is alleged to have been terminated for just cause, the employer bears the burden of proof to establish a prima facie showing of just cause for termination. If that has been done, the burden shifts to the employee to introduce competent evidence to rebut the employer’s case.
Although our standard of review precludes reweighing the evidence, we must reverse if reasonable persons would be bound to reach a different result upon a consideration of the evidence from the perspective favoring the Board’s decision.

Hehr v. Review Bd. of Indiana Employment Sec. Div., 534 N.E.2d 1122, 1124-25 (Ind. Ct. App. 1989) (citations omitted).
As previously mentioned, Schwab discharged Doughty for knowingly violating a written rule against fighting or assaulting. “In order to establish a prima facie case for violation of an employer rule under [Indiana Code Section] 22-4-15-1(d)(2), the employer must demonstrate that the employee knowingly violated a reasonable and uniformly enforced rule.” McClain v. Indiana Dep’t of Workforce Dev., 693 N.E.2d 1314, 1318 (Ind. 1998). “[A]n employer’s asserted work rule must be reduced to writing and introduced into evidence in order for us to fairly and reasonably evaluate a determination that an employee was justly discharged for a knowing violation of that rule. We believe that such is the minimum evidence necessary for the employer to satisfy its burden, by substantial evidence of probative value, that it has a rule and that that rule is reasonable and uniformly enforced.” Watterson v. Review Bd. of Indiana Dep’t of Employment and Training Servs., 568 N.E.2d 1102, 1105 (Ind. Ct. App. 1991).
On appeal, Doughty contends that Schwab failed to establish that he violated the rule against fighting or assaulting, that the rule applies to off-duty activity, and that it is uniformly enforced. We address each contention in turn.

MATTINGLY-MAY, Judge, dissenting

A.    I had been to the Schwab plant to put in an application for employment. We left, we were going out 60 west heading towards Owensboro and Mr. Doughty and his wife in a red and white pick-up truck had come around us. She threw a “mountain dew” can at our car.

(Emphasis in original.) We further noted:

    A rule laid down by the employer governing off-duty conduct of his employees must have a reasonable relationship to the employer’s interests in order that violation thereof will constitute misconduct barring eligibility for unemployment compensation benefits. The question of the reasonableness of such a rule is to be tested by the rule’s relationship to the business interests of the employer at the time of the making of the rule, rather than at the time of the employee’s violation thereof. A rule of this type may be regarded as reasonable where a violation is reasonably likely to harm the employer’s business interest, even though the actual violation does not result in actual harm to the business interests of the employer.

Id. at 523-24 (quoting 76 Am. Jur. 2d Unemployment Compensation § 57 (1975)) (emphasis in original). See footnote
An employer has a stake in regulating an employee’s on-the-job conduct. The employer may want to closely regulate his employee’s actions while at work in order to maximize efficiency and assure safety of personnel. Accidents occur at work and the employer has an interest in minimizing those accidents for the sake of his employees as well as for the sake of his own liability insurance. However, the same interest does not always exist in regulating the employee’s off-duty conduct. Id. at 524-25. Therefore, in order for an employer rule that regulates an employee’s off-duty activity to be considered reasonable, the activity sought to be regulated must bear some reasonable relationship to the employer’s business interest. Id. at 525.
    While I do not condone “fighting or assaulting” on or off the job, it is not apparent that an employee’s off-duty activities of that nature are reasonably related to Schwab’s business interests. See footnote Even though this incident was ill-considered on the part of Doughty and his wife, I do not believe it has the essential nexus to the workplace that Schwab’s company policies, to be considered reasonable, must require. Accordingly, I must dissent from the majority’s determination that Doughty was discharged for just cause because he violated a reasonable and uniformly enforced employer rule.