(dissenting).
For reasons I detail below and which I have discussed elsewhere, see Carpenter v. *739Iowa Dep’t of Job Serv., 401 N.W.2d 242, 246-47 (Iowa App.1986) (Schlegel, J., dissenting), I respectfully dissent.
I.
A. In 1983, in Budding v. Iowa Dep’t of Job Serv., 337 N.W.2d 219 (Iowa App.1983), this court examined the issue of whether an isolated incident of vulgar language in the workplace is sufficient misconduct to justify denial of unemployment benefits. That case addressed an incident of alleged misconduct much like the case before us. Budding had received a warning for a safety violation and another for allegedly unsafe operation of his bicycle on plant grounds. He was dismissed after a brief incident that culminated in his referring to his supervisor as a “dirty bitch.”
I concur in the majority’s statements concerning the law on misconduct. In fact, the majority adopts almost verbatim Budding’s language outlining our scope of review and case law on misconduct. It seeks, however, to overturn Budding’s holding, which states:
Where the use of vulgar language is an isolated incident in an environment where decorous language is not required and is not occasioned by a deliberate refusal to obey a reasonable directive, we are inclined to view it as a minor peccadillo. This is in accord with our oft-stated position that Code provisions which operate to work a forfeiture of benefits are strictly construed in favor of the claimant.
Budding, 337 N.W.2d at 222. The majority states instead:
The use of profanity or offensive language in a confrontational, disrespectful, or name-calling context, may be recognized as misconduct, even in the case of isolated incidents or situations in which the target of abusive name-calling is not present when the vulgar statements are initially made. The question of whether the use of improper language in the workplace is misconduct is nearly always a fact question. It must be considered with other relevant factors, including the context in which it is said, and the general work environment. Therefore, whether the event is misconduct is most generally a decision for the agency. To the extent Budding contradicts this position, it is overruled.
Supra at 738.
B. I strongly disagree with the majority and concurring opinions that Budding should be overruled. This is an unwarranted and needless attack on a precedent that has served as a backstop against zealous denial of benefits to individuals who have committed, as Budding, terms it, a “minor peccadillo,” that is, a petty sin. Not only does this decision, which easily could have been decided within the language of Budding or Carpenter, break faith with our case law, it clouds, rather than casts light, on the issue. Despite our statements “that Code provisions which operate to work a forfeiture of benefits are strictly construed in favor of the claimant,” Budding, 337 N.W.2d at 222, we turn our backs and make it easier to deny unemployment benefits — not just employment — because of a “petty sin.”
The majority concedes that “[t]he issue we address relates solely to whether or not petitioner is entitled to unemployment compensation,” supra at 737; see Budding, 337 N.W.2d at 221, and that “[mjisconduct serious enough to warrant the discharge of an employee, is not necessarily serious enough to warrant a denial of benefits.” Supra at 737 (citing Budding, 337 N.W.2d at 222). Yet, the basis for its conclusion seems to be “an employer’s right to expect decency and civility from its employees.” Supra at 738.
The majority accurately states that employers may expect their employees to act, or to refrain from acting, in certain ways. We did not condone the type of behavior at issue before us in Budding, see 337 N.W.2d at 222, and we should not condone it now. Nevertheless, in one fell swoop, the majority leaps from allowing employers to fire employees on this nebulous standard of “decency and civility,” which authority I do not dispute, to denying unemployment benefits on the basis of the ambiguous per se test quoted above.
*740As we stated in Budding and the majority reiterates here, “willful or wanton desre-gard of an employer’s interest,” 370 Iowa Administrative Code 4.32(1), requires that “the misconduct must be substantial ”, supra at 737 (emphasis supplied); Budding, 337 N.W.2d at 222, to support denial of benefits. The approach the court adopts today thoroughly confounds our longstanding practice of evaluating alleged misconduct on different scales, one for the employment relationship and one for the award or denial of unemployment benefits. Despite the majority’s statement to the contrary, gone is the idea that “[mjiscon-duct serious enough to warrant the discharge of an employee, is not necessarily serious enough to warrant a denial of benefits.” Supra at 737 (citing Budding, 337 N.W.2d at 222). As I discuss further in Division II, the effect will be to allow employers to establish the criteria for unemployment benefits.
I also take issue with the majority’s statement that what constitutes “misconduct” is a fact question. This is clearly inaccurate. We have only recently stated that such a “question ... is one of law: whether the facts fit the legal definition of misconduct under Iowa law.” Miller v. Employment Appeal Bd., 423 N.W.2d 211, 212 (Iowa App.1988). It is abundantly clear that “misconduct” is an empty vessel into which we must pour meaning, guided by statutory and administrative definitions and our case law. Although the agency presides as fact-finder — to determine whether the statutory elements exist, it remains our non-delegable duty to determine whether the law was properly applied. Iowa Code § 17A.19(8) (1989). The question whether an act or omission fits the legal definition of “misconduct” is a matter of law for the courts to decide. Although courts occasionally refer to misconduct as a fact question, they mean the presence of the basic elements of “misconduct” and inevitably reserve to themselves an evaluation of whether the legal definition was correctly applied to the facts. See, e.g., Fairfield Toyota, Inc. v. Bruegge, 449 N.W.2d 395, 397 (Iowa App.1989); Miller, 423 N.W.2d at 212; Engler v. Marshall Turkey Plant, 409 N.W.2d 570, 573 (Minn. App.1987); Garman v. State Employment Security Dep’t. 102 Nev. 563, 729 P.2d 1335, 1336 (1986); Sanchez v. New Mexico Dep’t of Labor, 109 N.M. 447, 786 P.2d 674, 677-78 (1990); Blueshield v. Job Service North Dakota, 392 N.W.2d 70, 73 (N.D.1986); Stagner v. Board of Review, 792 P.2d 94, 95 (Okla.App.1990); Peterson v. Employment Security Dep’t, 42 Wash.App. 364, 711 P.2d 1071, 1074 (1985).
C. The majority is mistaken in finding that because Budding can be distinguished, see Warrell v. Iowa Dep’t of Job Serv., 356 N.W.2d 587, 589 (Iowa App.1984) (vulgarities directed at supervisors by employee serving probationary period accompanied by refusal to obey reasonable instructions); Carpenter v. Iowa Dep’t of Job Serv., 401 N.W.2d 242, 245-46 (Iowa App.1986) (repeated incidents of abusive language directed at supervisor), its analysis is erroneous. In fact, the court uses the same analysis to reach its conclusion today, except that it ignores the requirement of “willful or wanton disregard,” which it notes “has been accepted by the Iowa Supreme Court as accurately reflecting the intent of the legislature.” Supra at 737 (citing Huntoon v. Iowa Dep’t of Job Serv., 275 N.W.2d 445, 448 (Iowa), cert. denied, 444 U.S. 852, 100 S.Ct. 105, 62 L.Ed.2d 68 (1979)).
Whether or not Budding was correctly decided on its facts, its test was easily applied. Under that test, we said we were disposed toward treating as a “minor peccadillo,” or, as the Minnesota courts have called it, a “hotheaded incident,” see Mankato Lutheran Home v. Miller, 358 N.W.2d 96, 98 (Minn.App.1984) (citing Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 145 (Minn.1984)), substandard employee behavior that includes vulgar language when:
(1) The use of vulgar language is an isolated incident;
(2) It occurs in an environment where decorous language is not required; and
(3) It is not occasioned by a deliberate refusal to obey a reasonable directive.
See Budding, 337 N.W.2d at 222.
Applying Budding, the majority might have found that decorous and respectful *741language was required in referring to Ms. East, thus failing the first part of the test. The majority might also have found Myers’s interference with sending supplies to the Armour staff a refusal to obey a reasonable directive. Moreover, before we decided Budding, we recognized that vulgar language in front of customers can constitute misconduct, Zeches v. Iowa Dep’t of Job Serv., 333 N.W.2d 735, 736 (Iowa App.1983).
D. If we continue down this path requiring us to discount, if not ignore, the context or isolation of an incident, we almost certainly will find ourselves faced with the new task of softening the blow of such a harsh rule. This rule makes no provision for isolated “hot-headed” incidents, see Gunn v. Gerace, 516 So.2d 1180, 1181 (La.App. 2d Cir.1987) (name-calling and profanity to comptroller did not amount to disqualifying conduct), cf. Carpenter v. Iowa Dep’t of Job Serv., 401 N.W.2d 242 (Iowa App.1986) (several times telling supervisors “kiss my ass” raised incidents to disqualifying conduct), provoked or de minimus language, see Reed v. Commonwealth, 104 Pa.Cmwlth. 373, 522 A.2d 121, 123-24 (1987) (remanded for determination of whether “vulgar and offensive language coupled with the threat of physical violence” to supervisor was provoked or de minimus); see also Mankato Lutheran Home v. Miller, 358 N.W.2d 96, 98-99 (Minn.App.1984) (nurse’s response to supervisor in presence of patients, “What the hell do you care [about my health]? ... I never had this goddamn pain until I came to this fucking hole,” was isolated incident that was partially provoked), raised voice or disrespectful tone, see Sheff v. Board of Review, 128 Ill.App.3d 347, 83 Ill.Dec. 624, 626-7, 470 N.E.2d 1044, 1046-47 (5th Dist.1984) (finding raised voice and disrespectful tone to supervisor did not rise to level sufficient “to deprive plaintiff of his statutory right to unemployment compensation.”), or a simple, nonvulgar “tantrum,” see Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 145 (Minn.1984) (finding nonvulgar “tantrum” directed at manager to be “ ‘a mere mistake or error in judgment — “a minor peccadillo” ’ ” (quoting Silva v. Nelson, 106 Cal.Rptr. 908, 911, 31 Cal.App.3d 136, 142 (1973))).
I do not advocate a “sticks and stones” test, but neither do I think that we should allow ourselves to go so far in the other direction that we may find ourselves or leave to the agency the task of evaluating every nuance of speech and intonation for evidence that it was “offensive” or “disrespectful,” or worse yet, within the employer’s expectations of “decency and civility.” See, e.g., Sheff, 83 Ill.Dec. at 626-7, 470 N.E.2d at 1046-47 (raised voice and disrespectful tone); Windsperger, 346 N.W.2d at 145 (nonvulgar “tantrum”). Parade of horribles to one side, this leaves too much to chance and puts too much discretion in the hands of employers.
II.
In the current atmosphere of our state where employment “at will” finds great support, the majority now places in the hands of the employer, the ability to destroy the remaining safeguard against the ravages of unemployment. Allowed to stand, the rule the majority announces today empowers employers not only to discharge employees for any reason, but to selectively deny unemployment benefits based upon the words the employee speaks. I submit that this is an interpretation of the law, which can lead to the ultimate destruction of unemployment compensation.
The statutory language of the unemployment compensation statutes dwells upon the purpose of the law to relieve the hardship of unemployment. The law is primarily aimed at the relief of the hardship to the worker and his family. The system’s genesis was for that purpose and also to act as recession proofing by sustaining the purchasing power of those whose jobs had disappeared. Without that purchasing power, employers also disappeared, resulting in still further unemployment and a depressed economy. We must use caution that we do not provide the means for the destruction of the program. The majority takes a giant step in that direction by its opinion in this case.
*742In this day of more affluence and greater consumption, the majority obviously fails to see the need for a diligent guarding of the principles of the program of unemployment insurance, and finds itself in a position to restrict its benefits. Note well, the inroad that the majority creates today will be put into effect more and more by the unscrupulous employers. Undecorous language will become the future rationale for denial of benefits. Budding was the thin line of protection of the program. I predict that with it removed, the abuse of the system will be rampant.
For the foregoing reasons, I would reverse the appeal board’s denial of benefits and would remand the case to the agency for the determination of the amount of benefits.
OXBERGER, C.J., joins this dissent.