dissenting.
In my view, the peculiar posture of this case requires that we remand it to the Employment Division for further proceedings.
On appeal, claimant makes two contentions: (1) education service districts are not educational institutions as contemplated under ORS 657.221, and (2) the *196record fails to support the Employment Appeals Board’s (EAB’s) conclusion that the District is an educational institution.
Analyzing the above contentions, it is obvious that the sole issue on appeal has become whether the District is an "educational institution.” However, an examination of the record at the hearing reveals that this issue was not even mentioned, let alone raised there by claimant.1 Claimant merely contended that she was entitled to unemployment benefits because the District had changed her status from a 12-month employe to a 10-month employe. The first time the "educational institution” contention surfaced as an issue in this case was in claimant’s brief on appeal to EAB.
A review of the hearing record establishes:
First, there is insufficient evidence in this record to support EAB’s conclusion that the District is an "educational institution.” (It should be pointed out that claimant agrees with this conclusion. See point (2) above.)
Second, I conclude, however, that fairness demands that the District be given an opportunity to present evidence with respect to its operations to try to establish if the same brings it within the terms of the definition of ORS 657.010(16).
The majority says that this is purely a question of law, and that there is no need to take evidence on this question. I cannot agree. As I see it, this is a mixed question of law and fact because a factual examination is required in each case to determine if the District *197involved is actually functioning as an educational institution. The School District argues in its brief that it can if given the opportunity prove that it is presently functioning as a bona fide "educational institution,” and that it should be permitted to make a record because this issue was not properly raised at the hearing level. I agree.
In Ford Motor Co. v. National Labor Relations Board, 305 US 364, 373, 83 L Ed 221, 59 S Ct 301 (1939), the court said:
" * * * It is familiar appellate practice to remand causes for further proceedings without deciding the merits, where justice demands that course in order that some defect in the record may be supplied. Such a remand may be made to permit further evidence to be taken or additional findings to be made upon essential points * * *. The purpose of the judicial review is consonant with that of the administrative proceeding itself, — to secure a just result with a minimum of technical requirements.”
See Wright v. Insurance Commissioner, 252 Or 283, 449 P2d 419 (1969); Michelet v. Morgan, 11 Or App 79, 502 P2d 984 (1972).
Accordingly, pursuant to the authority vested in this court under ORS 183.482(8)(d),2 I would remand this case to the Employment Division for taking additional evidence and making findings of fact as indicated.
The District answers the first contention by asserting that claimant does not have standing to raise the issue of whether the Coos County ESD is an "educational institution” within ORS 657.010(16), because claimant did not raise that issue until after the hearing had been concluded.
Both the administrative decision of the agency and the referee’s decision were expressly based on the disqualification contained in ORS 657.221, which of course applies only to employes of "educational institutions.” ORS 657.010(16). Accordingly, I conclude claimant was entitled to raise this issue before the Employment Appeals Board.
ORS 183.482(8)(d) provides:
"The court may affirm, reverse or remand the order. The court shall reverse or remand the order only if it finds:
"(d) The order is not supported by substantial evidence in the whole record.”