dissenting.
I would hold that claimant’s acts did not constitute misconduct under ORS 657.176(2)(a) as a matter of law.
A preliminary distinction must be made. Unsatisfactory conduct for which an employe may properly be discharged is not necessarily misconduct warranting disqualification from unemployment compensation. See, Giese v. Employment Div., 21 Or App 929, 933, 557 P2d 1354 (1976) rev den (1977); Geraths v. Employment Division, 24 Or App 201, 544 P2d 1066 (1976); T. Broden, Law of Social Security and Unemployment Insurance, § 12.01 (1962). While an employer may discharge an employe for any reason, or for a whim, the discharge is not for misconduct under ORS 657.176(2)(a) unless the employe’s improper conduct is in disregard of and injurious to the employer’s legitimate interests. Thus, this case deals not with cause for termination, but with cause for restricting unemployment compensation.
An isolated instance of poor judgment or a single, nondeliberate violation of an employer’s rules is not misconduct requiring disqualification from compensation. Dietz v. Smith, 28 Or App 871, 875, 561 P2d 1032 (1977); Babcock v. Employment Div., 25 Or App 661, 665, 550 P2d 1233 (1976). On the other hand, isolated acts may constitute misconduct where they involve deliberate violation or disregard of standards of behavior which the employer has a right to expect of its employes. Erickson v. Employment Div., 29 Or App *270893, 896, 565 P2d 1101 (1977); Romanosky v. Employment Div., 21 Or App 785, 788, 536 P2d 1277 (1975).
Two of this court’s decisions have applied the foregoing principles to factual situations similar to this one. In Georgia-Pacific v. Employment Div., 21 Or App 135, 533 P2d 829 (1975), claimant and another employe were discharged for fighting while on the job. The latter had been harassing a third employe and claimant came to the third employe’s defense and called the other man an obscene name. He then left the room, but the other employe soon came up to claimant and struck him with his hat, whereupon the two exchanged blows with their fists. This court concluded that claimant was not the aggressor in the scuffle and therefore affirmed the Board’s decision that claimant’s conduct was not misconduct for purposes of ORS 657.176(2)(a).
In Weirich v. Employment Division, 19 Or App 479, 528 P2d 105 (1974), claimant had initiated arguments with his fellow employes about violations of the union agreement at least twice in the presence of customers. On one occasion claimant used the office intercom to reprimand another employe and to call him a crybaby, and customers overheard his statements. This court affirmed the Board’s decision that claimant’s conduct constituted misconduct within the meaning of ORS 657.176(2)(a).
This is a close case. On one hand, claimant’s two altercations with fellow employes reveal an occasional inability or unwillingness to control his temper while at work, and his actions violated a reasonable company rule against threatening or intimidating fellow employes. Some disciplinary action was appropriate. On the other hand, an employe who believes that he has been unfairly treated by his union steward or that his family has been the target of bigoted remarks properly may take his fellow employes to task for those wrongs. The fact that claimant, while on the *271employer’s premises, expressed his anger by threatening his co-workers and subjecting one of them to minor physical abuse shows, at least, a lapse of judgment in disregard for the employer’s interest.
Whether an offensive act is in deliberate disregard of the employer’s interest may be determined from two factors relevant in this case: (1) the severity of the behavior; and (2) whether it is isolated or representative behavior.
Claimant’s behavior, while it subjected him to sanction under the employer’s reasonable rule, was at least partially mitigated by provocation. Thus in terms of severity, it is closer on the facts to Georgia-Pacific than to Weirich. Were this a relatively new employe, two such incidents, close in time, may well be sufficient to allow an inference of disregard of the employer’s interest and a conclusion of statutory misconduct. Where, however, as here, the marginal behavior follows 14 years of presumably satisfactory employment, it must be deemed to be isolated conduct rather than conduct representative of a disregard for the employer’s interest. This is not to enunciate a different rule for newer and older employes; rather, it is to recognize that any inquiry into statutory misconduct is necessarily situational rather than absolute. Given the marginal severity of claimant’s conduct and the context in which it occurred, I would conclude that there was no showing of statutory misconduct.
Schwab, C. J., and Thornton. J., join in this dissent.