dissenting.
Although I might agree with the majority that there is some evidence of misconduct on claimant’s part, I disagree with the result and would hold as a matter of law that the facts show only an isolated instance of poor judgment and not misconduct sufficient to justify a denial of benefits.
We should be guided by Bunnell v. Employment Division, 304 Or 11, 741 P2d 887 (1987), where the claimant resisted an employer’s request that she perform certain duties and became abusive, saying loudly enough to be heard by other employees that she “had had enough of this shit” and enough “of this damn store.” 304 Or at 13. In holding as a matter of law that that was an isolated instance of poor conduct, the Supreme Court noted that the claimant had never before used such language on the job and had followed directions of the employer before the incident. In this case, claimant had worked for employer for approximately 15 months before the incident. There was no evidence of fighting or inappropriate conduct of a similar nature previously. The duration of the incident was about five minutes, and the evidence clearly establishes that the co-worker was the physical aggressor, not claimant. There is no evidence of injury or involvement of third parties, except the two supervisors.1
*353I would hold, on these facts, that EAB erred in failing to find that the incident was an isolated instance of poor judgment.
I dissent.
In any event, EAB’s reliance on the fact that claimant could have, and should have, turned to the supervisor who was present to avoid the fight is inconsistent with its finding that she did ask the supervisor for help to avoid the fight. See Home Plate, Inc. v. OLCC, 20 Or App 188, 530 P2d 862 (1975).