Dissenting.
As stated by the majority, this court can only reverse the order of the Employment Division in this case if that order was "unlawful in substance or procedure” or was "not supported by substantial evi*558dence” in the record (ORS 183.482(8)). The majority does not hold either that the order was "unlawful” or that it was "not supported by substantial evidence.”
Instead, the majority has remanded this case to the Employment Division for the development of "criteria” of "good cause,” based upon a theory which was not urged or discussed by either party in this case, and was not submitted to them by this court as a question on which this court was interested in hearing argument upon the hearing of this petition for review.
As a result, neither party has had an opportunity to be heard on this question and this court has not had the benefit of a scrutiny of that theory through the operation of the adversary process.
This case was argued on July 12,1978. During the subsequent eight months there has been ample time for this court to request the parties to submit supplemental briefs on this question. Once this court has decided a case upon a theory not briefed and argued by the parties, the procedure provided by a petition for rehearing does not provide a fair and satisfactory means through which the parties may attempt to persuade the court that it was in error in deciding the case upon a theory which it has already approved and adopted. See LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204, on rehearing 284 Or 173, 586 P2d 765 (1978).
The decision of this case has now been delayed so long, however, that it may not now be advisable to delay its decision further by a request for supplemental briefs. See concurring opinion, State v. Classen, 285 Or 221, 238, 590 P2d 1198 (1979).
With all due respect to the majority, "this is [no] way to run a railroad.”