*1 remanded for reversed and brief Submitted on record and 10,1988 August FLAUCHER, Petitioner, v. al, et DIVISION EMPLOYMENT Respondents. A42619) (EAB 86-AB-764-A; CA P2d 422 peti- for Dundee, pro the brief se Flaucher, filed Roger J. tioner. Division. respondent appearance

No Postal Serv- United States respondent appearance No ice. and Warren Judge, Buttler, Presiding

Before Rossman, Judges.

BUTTLER, P. J. J.,

Warren, concurring.

BUTTLER, P. J. judicial seeks review of an order of the (EAB) Appeals Board adopting referee’s decision denying his claim for unemployment benefits. We reverse and remand.

The referee made these findings: “(1) employed years Claimant was by four as a mail carrier Service], States Postal working last in its [United (2) in Newberg, Oregon. A things co-worker said or did frequently which claimant construed to be harassment and (3) performance adverse to his Complaints of his work. postmaster postmaster and assistant did not result in correc- (4) tive action which appropriate. claimant believed shop is the alternate steward group, for his union the work grievance process but did not use the identifying condi- be, tions that being, should but were not manage- corrected ment. On December claimant waited for the co- just worker after work employer’s premises. hours and off the up When the co-worker walked to the area where claimant waiting, apparently challenging attitude, was in a mood or causing claimant assaulted him bruises and contusions to the body. co-worker’s The co-worker missed next several *3 days injuries of work due to the sustained the altercation. co-worker, claimant, being after attempted struck claimant, to hit the but the blow was warded off. Both employes wearing were still their mail carrier uniforms which employes identified them as of the U.S. Postal Service. employer and, investigated upon the incident based the reported sequence events, of discharged January claimant on 17,1986.” grievance Claimant filed a against employer his and was rein- pay stated without back 1986.1 Several wit- grievance nesses testified at the hearing Wright, that the employe altercation, with whom claimant the had often acted in a vulgar, obnoxious and occasionally physically abusive employes fashion toward other at post the office.

The referee denied benefits on the ground that claim ant had been “discharged misconduct connected with requested findings Claimant that EAB reconsider its decision on the basis of the grievance accepted and conclusions of the arbitrator. EAB the arbitrator’s order into decision, dissenting. the record and reaffirmed its with one member 471-30-038(3) mis- 657.176(2). defines such OAR ORS work.” conduct: 657.176(2)(a) (b), mis- and provisions ORS

“Under the of of the is a violation of standards conduct wilful An employe. an has to of the employer’s inter- disregard a wilful that amounts to of act est, wrongful recurring negligence which demonstrates or poor judgment, of is Isolated instances intent misconduct. accidents, ill- errors, absences due good faith unavoidable disabilities, or mere ineffi- physical or mental ness or other experience not job skills are ciency resulting from lack of or denying ORS purposes benefits under misconduct 657.176.” sup- the evidence does not contends that is findings that substantial evidence

port the referee’s and 183.470(2); the ORS support order. ORS lacking 183.482(8)(c). if char- that, even his actions can be argues He misconduct, were not “connected with they as acterized 657.176(2). That contention is work,” as ORS the of the altercation: both claimant based on circumstances the duty fight and the occurred outside Wright were off However, is post premises. there substantial evidence office the altercation was connected support conclusion that the had its dispute Wright with work. The between claimant genesis workplace; in the occurred immedi- the altercation immediately after ately adjacent premises, day they both men had left work for the and while were still Therefore, EAB’s conclusion wearing postal service uniforms. supported by is that claimant’s actions were work-related evidence. his argues also that EAB’s conclusion that 471-30-038(3) sup OAR is not

actions were misconduct under rule, inquiry ported by evidence. Under substantial vio first, a “wilful stages: was claimant’s conduct has two lation of the standards behavior which second, if do the rule’s employe;” of an specifically, from the definition exclusions *4 Bunnell v. poor apply? judgment,” “isolated instances Division, (1987). 304 741 P2d 887 Employment Or not reflect a consideration of referee’s order does poor instance of claimant’s conduct was isolated whether it adopted EAB the referee’s order reaffirmed judgment. to address that issue. on reconsideration. EAB also failed to EAB for requires Because Bunnell that it do we remand of whether claimant’s action was an isolated poor judgment. instance

Reversed and remanded for reconsideration. WARREN, J., concurring. concur,

I in this case is because the result Division, Or 741 P2d 887 Bunnell v. (1987). required the same result would be if claim- Presumably if he deliberately eyes, ant had shot a coworker between the Supreme in that misconduct before. As the engaged had not Bunnell, definition of misconduct excludes Court noted Or at 16. EAB poor judgment. isolated instances of When already decided disqualifying finds it in effect has standards of the conduct was a willful violation of the presum- behavior that an has a ably has considered and decided that none of the exclusions apply. Supreme from the definition of misconduct Court also said that the administrative rule was unclear as every “whether willful violation of the standard is misconduct or poor act can be an isolated instance of whether isolated rule’s even wilfull.” 304 Or at 15. Given the judgment though unclear, me clarity, mystery lack of if it is indeed it is still a a why interpretation permissible EAB’s of its own rule is not the courts. binding one and