MELISSA JONES,
            Grievant,

v v.

      
BRAXTON COUNTY BOARD OF EDUCATION,
            Respondent.

D E C I S I O N

      Grievant, Melissa Jones, employed by the Braxton County Board of Education ("BCBOE" or "Board"), filed the following grievance on or about December 21, 1999:


      The grievance was denied at Level I by Don Johnson, Principal at Sutton Elementary School. A Level II hearing was held on February 16, 2000. A Level II decision denying the grievance was issued on March 3, 2000. Grievant bypassed Level III and appealed to Level IV on March 8, 2000. A Level IV hearing was held on May 22, 2000. This case became mature for decision on June 23, 2000, after receipt of the parties' proposed findings of fact and conclusions of law.   (See footnote 1) 
Issues and Arguments

      Grievant asserts BCBOE cannot independently contract for regular services that can be performed by a service personnel employee. Grievant argues the West Virginia Supreme Court of Appeals cases of State ex rel. Boner v. Kanawha County Board of Education, 197 W. Va. 176, 475 S.E.2d 176 (1996), and O'Connor v. Margolin, 170 W. Va. 762, 296 S.E.2d 892 (1982) support this argument.
      Respondent argues boards of education are allowed by W. Va. Code § 18-5-5 to enter into contracts without specific limitation, and the two individuals referred to in this grievance are independent contractors. Further, Respondent notes the cases referred to by Grievant are not specifically on point, and the West Virginia Supreme Court of Appeals has not addressed the question raised by this grievance. Respondent also argues the grievance is not timely filed.   (See footnote 2) 
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
Findings of Fact

      1.      Grievant has been employed by BCBOE as a substitute aide since August of 1995.
      2.      In the Fall of 1999, Grievant worked as a substitute at Braxton Middle School. In October of 1999 during the Special Olympics, Grievant had an opportunity to observe two individuals working with two students from Sutton Elementary School. BecauseGrievant was friends with one of the individuals, she asked her several questions and found out her friend was working with an autistic, Special Education child in the school setting, and was not employed by BCBOE, but by another entity.
      3.      Boards of education were directed by the Legislature to become medicaid providers, "to seek out medicaid eligible students", to provide medicaid and related services, and to "maximize federal reimbursement for all services available under the Omnibus Budget Reconciliation Act." W. Va. Code § 18-2-5b.
      4.      BCBOE is certified by the West Virginia Department of Health and Human Resources to provide behavioral health services. Resp. Ex. No. 1, at Level IV.
      5.      In 1999, BCBOE entered into a contract with Precision Services, Inc. "[t]o provide behavioral health services." This one page contract, including signatures, indicated Precision Services, Inc. "shall provide an individual with: a minimum of a high school diploma [and] training in first aid and CPR." This contract also indicated Precision Services, Inc. shall provide "supervision of the employee." Braxton County School Health Services "shall provide clinical direction and training activities as prescribed by Chapter 300.342 - 300.343, Medicaid Regulations."   (See footnote 3) 
      6.      The contract does not clarify what the independent contractors will do, how and with what frequency the employees will be supervised, who will supervise the employees, or any other pertinent details.      7.      The Director of Special Education and Behavioral Health Services, David McChesney, testified BCBOE had no control over the independent contractors, and the teacher was only to offer guidance and suggestions. He stated there was no on-site supervision, but was unable to shed further light on the supervision issue. He stated, "The supervisor, I'm assuming, I'm fairly sure is Mrs. Short   (See footnote 4)  , and she's the one that's involved in hiring and replacing. I'm not certain of this, but I think they're in the process of replacing an individual." Test. at 43-44, Level II Hearing.
      8.      The workers at Sutton Elementary School were employed through Precision Services, Inc., and were hired to assist students in academic subjects and to keep them on task. The type of services provided by the independent contractors are covered or cited in the Treatment Plan which follows a medical model, are called enhancement services, are goal-directed and specific, and are paid for by medicaid. These services are in the area of basic living skills.
      9.      Although BCBOE argued these services were different from the type of activities listed on a student's Individual Educational Plan ("IEP"), BCBOE was unable to give examples of activities that would be listed in the Treatment Plan that would not be covered in the IEP. Examples given by Mr. McChesney were survival reading and impulse control, but he did not indicate these activities could, would, or should not be covered on an IEP.   (See footnote 5)        10.      If the workers have difficulty with the students or need assistance and guidance, they receive this assistance and direction from the classroom teacher. The classroom teacher gives these workers directions.
      11.      The positions held by these workers were not posted, and the individuals hired in these positions were not required to take and pass the Aide competency examination, but they were required to have CPR and first aid training.   (See footnote 6) 
      12.      BCBOE did not perform any type of screening or background check on these individuals, and did not detail any type of training or testing these individuals possessed other than first aid and CPR training. BCBOE did not know if a background check had been performed.
      13.      In January, after filing this grievance, Grievant substituted in the Sutton Elementary School classroom where the independent contractors work. She observed the individuals performing regular aide-type duties, and receiving direction from the classroom teacher. Grievant also worked with a students assigned to one of Precision Services, Inc. workers while that individual was on break.   (See footnote 7) 
      14.      The type of services performed by these workers are the same type of services that can be and frequently are, performed by classroom Aides.      15.      BCBOE could receive funding to have these services performed by BCBOE Aides. It is not necessary, nor is it required, to have these services performed by an employee outside the school system.
      16.      BCBOE has no plans to hire Aides to perform these type of services.
Discussion

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Toney v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. Kanawha County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997). See W. Va. Code § 18-29-6.
A.      Review of the case law.
      This grievance raises a legal issue which has not been previously addressed, although similar issues have been considered which do offer some guidance. A review of those cases may be helpful. In 1982, the West Virginia Supreme Court of Appeals held in O'Connor, supra at Syllabus Point 1, that W. Va. Code § 5A-4-1 required the Director of General Services, from Department of Finance and Administration, to furnish janitorial services, and he was "without authority to terminate the employment of such employees as a class for the purpose of obtaining the same type [of] janitorial service through private contracting." Thus, the Department was not allowed to terminate these employees and hire independent contractors even though it was less expensive.   (See footnote 8)        Both parties cite the 1996, West Virginia Supreme Court of Appeals decision of Boner, supra, as support for their position. In Boner, the Kanawha County Board of Education abolished the full-time teaching, professional positions of homebound teachers and replaced these instructional services with hourly employees without showing a "concomitant reduction in [the] need for such instruction. . . ". Id. at Syl. Pt. 1. The Court held this "plan clearly operates in contravention of the contractual scheme of employment contemplated by W. Va. Code (sic) § 18A-2-2 (1993) along with the attendant benefits of such contracts." Id. As noted in Boner, that case did not present the issue of whether school boards may contract with non-employees for professional services or service personnel services, even though the petitioners asked the Court to expand the holding in O'Connor. Id. at 180. The Court recognized at note 14 that, "[t]he petitioners seek to expand the limited O'Connor holding to prohibit the Board from contracting with private or other entities for the duties performed by the homebound instructors." As this issue was not before the Court, it was not addressed.
      This Grievance Board has examined the issue of contracting out services in a variety of situations. In Moss v. Barbour County Board of Education, Docket No. 89-01- 386 (July 7, 1990), this Grievance Board found a county board of education had the authority to contract out, and the board was able to contract with another board of education to provide transportation services for an extra-duty run pursuant to W. Va. Code § 18-5-13(7). In Barnisky v. Pocahontas County Board of Education, Docket No. 93-38- 027 (November 22, 1993), aff'd Circuit Court of Kanawha County, Civil Action No. 94-AA- 117 (Oct. 7, 1994), this Grievance Board noted a board of education, as a quasi-publiccorporation, had the authority and right to contract for services pursuant to W. Va. Code § 18-5-5. See Herald v. Bd. of Educ., 65 W. Va. 765, 65 S.E.2d 102 (1909). Barnisky held a board of education could contract out for overtime services, as there was no guarantee for overtime time work in either W. Va. Code §§ 18A-4-8 or 18A-4-8b, and contracting out in this situation was not an abuse of discretion.
      After the ruling in Boner, the Grievance Board decided the grievance of Ganoe v. Hampshire County Board of Education, Docket No. 97-14-229 (July 30, 1997). In Ganoe the board contracted directly with the grievant to be a “Contract” Classroom Aide. Ganoe filed a grievance because she was denied seniority while working in this position. This grievance raised the question of whether a board of education's hiring of “contract” employees without granting them seniority or other benefits was proper under the statutes governing employment of school personnel.
      The administrative law judge in Ganoe found the fact pattern in that grievance, while not precisely addressing the issue in question, was the basis for the Supreme Court of Appeals' decision in Boner, supra. The Boner Court determined the board's plan to replace full-time teachers with contract, hourly employees was contrary to West Virginia's statutes governing the employment of school personnel, and allowing the board to eliminate full-time teaching positions, without a showing a reduced need, circumvented the Code's contractual scheme of employment for teachers. The Boner Court also recognized teachers must execute a contract before entering upon their duties, and thereafter become entitled to various benefits and protections set forth by statute.      The Ganoe administrative law judge held the Hampshire County Board of Education's system directly contravened the contractual scheme governing the employment of service personnel, and noted, as did the Boner Court, that under this logic, a county board of education could pick any group of employees and declare them to be hourly employees in order to avoid paying the benefits and affording the protections associated with full-time employment. If this were allowed, all of the statutes governing the hiring, promotion, benefits, seniority, and other issues affecting the employment of school personnel would be a farce. Ganoe, supra. The administrative law judge found the board's employment of grievant as a Contract Aide was contrary to statute, and grievant should have been considered a full-time, regular employee with all attendant rights and benefits as set forth in West Virginia's school personnel statutes.
      In Dempsey v. Fayette County Board of Education, Docket No. 98-10-357 (December 8, 1998), the grievant, a regularly employed custodian, alleged the use of professional employees and/or volunteers to perform custodial assignments violated W. Va. Code §§18A-4-8 and18A-4-8b. Grievant alleged these Code Sections mandated custodians must be offered the opportunity, on a rotating basis, to work extra-duty assignments.
      The administrative law judge found there is nothing in W. Va. Code §§ 18A-4-8 or 18A-4-8b requiring a board of education to guarantee overtime work assignments to service personnel, nor is there anything which prevented a board of education from contracting out services. W. Va. Code § 18-5-5; Barnisky, supra; Herald, supra. The administrative law judge found "Boner held the contractual scheme of employment forschool personnel does not allow for the hiring of contract employees to perform full-time[,] regular duties of school service personnel." Dempsey, supra. The administrative law judge also noted this Grievance Board had previously held a county board of education could accept volunteer help and was not required to pay service personnel to perform duties a community volunteer was willing to perform. Moody v. Marion County Bd. of Educ., Docket No. 93-24-401 (Apr. 29, 1994). Further, the administrative law judge found "service personnel employees may not compel a board of education to assign them any given project as part of their regular duties or as an extra-duty assignment when the work can be completed with volunteer labor and the service employees are not deprived of their regular work time or wages as a result." Id.
      In Moore v. Lincoln County Board of Education, Docket No. 97-22-549 (May 8, 1998), the board of education contracted with the mother of a special education student to perform a "supplemental one hour position" without posting. The administrative law judge found it was a violation of W. Va. Code § 18A-4-8b for the Board to contract with the special education student's mother to perform this job for $20.00 per hour, rather than filling it with an employee of the Board.
      The administrative law judge noted W. Va. Code § 18A-4-8b   (See footnote 9)  requires all school service personnel positions occurring throughout the school year to be posted and filled on the basis of seniority, evaluations, and qualifications, and applicants must be given preference in filling the position in the following descending order: Regular employees, preferred recall list employees, substitute employees, and new applicants.       The administrative law judge held the Board erred in contracting the one-hour only position with the mother of the special education student, who was not an employee of the Board in any capacity. The Moore administrative law judge relying on Boner, supra, and Ganoe, supra, held the contractual scheme of employment for school personnel does not allow for the hiring of contract employees to perform full time, regular duties of school service personnel positions.
      As pointed out by the Respondent, the Conclusions of Law in several of our contracting out cases read as if the issue presented by this grievance was already settled by Boner, when in actuality this issue was expressly not addressed in Boner. See discussion at 7, infra. For example, the Conclusion of Law 2 in Dempsey states, "[t]he contractual scheme of employment for school personnel does not allow for the hiring of contract employees to perform full-time regular duties of school service personnel. State ex rel. Boner v. Kanawha County Bd. of Educ., 197 W. Va. 176, 475 S.E. 2d 176 (W. Va. (sic)1996)." As previously noted the West Virginia Supreme Court of Appeals did not address the issue of whether a board of education could contract for services with an outside entity.
B.      Discussion of case law as it applies to this case.
      A review of the case law indicates this issue is a close one, and one that has not been previously addressed by the West Virginia Supreme Court of Appeals or this Grievance Board. In reaching the Decision here, the undersigned Administrative Law Judge found two factors to be important. First, the contractual scheme of employment for service personnel as contemplated in W. Va. Code §§ 18A-2-5 & 6 and 18A-4-8b. Second, that the mode of, or possible lack, of supervision of the "independent contractors", calls into question whether they are functioning as independent contractors even though they were hired through a separate entity. It appears they are functioning as employees/aides because their actions are supervised on a daily basis by the classroom teacher, and there is no evidence of supervision by anyone else on any type of regular basis or schedule.
C.      Contractual Scheme
      Pursuant to W. Va. Code § 18-5-5 boards of education have the right to enter into contracts. As stated in Herald, supra "[a] board of education is a quasi public corporation, existing only under statute, having only the powers given by statute and such implied powers as are absolutely necessary to execute such express powers. It cannot engage in business or make contracts outside its functions touching education."   (See footnote 10)        
      There are numerous statutes which speak to the employment of service personnel, in general, and Aides, in particular. W. Va. Code § 18-5-13 states in pertinent part:
. . .



(Emphasis Added.)

      W. Va. Code §§ 18A-2-5 discusses service personnel contracts and reads as follows:



(Emphasis Added.)

      W. Va. Code § 18A-2-6 relates to the continuing contract status of service personnel.


      W. Va. Code § 18A-4-8b discusses seniority for service personnel and states the following in pertinent part:
. . .


. . .


      W. Va. Code
§18A-4-8 discusses the employment term of service personnel and briefly defines the duties and characteristics of each position.
. . .





(Emphasis Added.)
      
      Perhaps a basic issue to address initially is the type of services provided by the "independent contractors" in this case. Although an exact answer to this repeated question was unclear, the undersigned Administrative Law Judge finds the services provided are those that could and can be covered under the duties identified in the Aide definitions. See Finding of Fact 14. Thus, the activities performed by these workers are not so specialized that they could not be carried out by an Aide. This is not to say that if required by the federal government in order to qualify for funding, that specified, additional qualifications for an Aide could not be added to the basic requirements and competency examination, such as CPR and first aid training by a board of education.
      As recognized by the Code Sections above, a board of education has the right to contract with employees to provide a broad range of Aide services, and this GrievanceBoard has recognized the right of boards of education to contract out overtime and extracurricular services to non-employees.
      In this situation, with these specifics set of facts, the undersigned Administrative Law Judge finds the positions at issue must be filled by board of education employees, and the method by which BCBOE has independently contracted with Precision Services, Inc. operates in contravention of the elaborate contractual scheme of employment contemplated by W. Va. Code §§ 18A-2-5 & 6 and 18A-4-8b. The undersigned Administrative Law Judge is persuaded by the reasoning used in Boner. If a board of education is allowed to contract out for Aide services simply by calling them by another name, what is to prevent the same thing from happening in a variety of service personnel positions. Watchmen could be called Security Specialists, Custodians could be identified as Sanitation Assistants or Sanitation Personnel, and Secretaries and Clerks could be designated Office Assistants. Individuals could be hired in a variety of positions, without competency examinations, without competition based on qualifications and seniority, and without direct supervision.
D.      Supervision issue
      The next issue to address, and indeed the one more worrisome to the undersigned Administrative Law Judge, is the apparent lack of supervision, direct or otherwise, of the "independent contractors". Two thoughts come to mind in examining this issue: 1) there actually is little to no supervision; or 2) as argued by Grievant, the designation of the teacher's role as one of guidance only is "an exercise in sophistry." It must be remembered that the contract does not give any information about the type, frequency, ormethod of supervision. The individual who signed the contract with Precision Services, Inc., Mr. McChesney, was unable to clarify or add additional information about supervision. In essence, the undersigned Administrative Law Judge finds that what actually happens is that the classroom teacher is placed in an untenable position. She or he is actually required to supervise these people, but has little or no method by which to control, correct, or complain about their actions.
      As raised by Grievant, the question is whether these employees are really functioning as independent contractors.   (See footnote 11)  A review of several cases decided by the West Virginia Supreme Court of Appeals indicates that if BCBOE, through the teacher is actually supervising these people, they are not functioning as independent contractors.       In Myers v. Workmen's Compensation Commissioner, 150 W. Va. 563, 148 S.E.2d 664 (1966) the West Virginia Supreme Court of Appeals held at Syllabus Point 1, "[t]o ascertain whether a workman is an employee or an independent contractor each case must be resolved on its own facts and ordinarily no one feature of the relationship is controlling, but all must be considered together. The Court further held at Syllabus Point 2, "[i]n determining whether a workman is an employee or an independent contractor, the controlling factor is whether the hiring party retains the right to control and supervise the work to be done." At Syllabus Point 3 the Court stated "'[i]f the right to control or supervise the work in question is retained by the person for whom the work is being done, the persondoing the work is an employee and not an independent contractor, and the determining factor in connection with this matter is not the use of such right of control or supervision[,] but the existence thereof in the person for whom the work is being done.' Point 2, Syllabus, Spencer v. The Travelers Insurance Company, 148 W. Va. 111."
      Additionally, it was stated in the Syllabus Point of Greaser v. Appaline Oil Company, 109 W. Va. 396, 155 S. E. 170 (1930), "[t]he test of the relation between one having work done and the workman consists in the employer's right or lack of right to supervise the work. If that right exists, the relation is that of master and servant. If that right does not exist, the relation is that of employer and independent contractor." In Null v. State Compensation Commissioner,128 W. Va. 6, 35 S. E. 2d 359 (1945), the Court said: "The crucial test is the existence of the right of supervision by the coal company. If the company had the right to supervise the work done by Null, it was an employer and Null an employee." See also Myers, supra; Crowder v. State Compensation Comm'r, 115 W. Va. 12, 174 S. E. 480 (1934); Smith v. Donald Coal Co., 92 W. Va. 253, 115 S. E. 477 (1922); Kirkhart v. United Fuel Gas Co., 86 W. Va. 79, 102 S. E. 806 (1920).
      Accordingly, the undersigned Administrative Law Judge finds, based on the facts as presented, that the individuals working with the students in the Sutton Elementary School classroom are actually supervised by the teacher, as she is expected to direct and guide their work, and to intervene when appropriate. Thus, these workers are not functioning as independent contractors.
      The above-discussion will be supplemented by the following Conclusions of Law.

      Conclusions of Law
      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Toney v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. Kanawha County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997). See W. Va. Code § 18-29-6.
      2.      "A board of education is a quasi public corporation, existing only under statute, having only the powers given by statute and such implied powers as are absolutely necessary to execute such express powers. It cannot engage in business or make contracts outside its functions touching education." Herald v. Bd. of Educ., 65 W. Va. 765, 65 S.E. 102 (1909). Pursuant to W. Va. Code § 18-5-5 boards of education have the right to enter into contracts.
      3.      """School personnel regulations and laws are to be strictly construed in favor of the employee." Syl. pt.1, Morgan v. Pizzino, 163 W. Va.454, 256 S.E.2d 592 (1879).' Syl. Pt.1, Cruciotti v. McNeel, 183 W. Va. 424, 396 S.E.2d 191' (1990)." Syl. Pt. 1, State ex rel. Boner v. Kanawha County Bd. of Educ., 197 W. Va. 176, 475 S.E.2d 176 (1996).
      4.      The method by which BCBOE has independently contracted with Precision Services, Inc. operates in contravention of the elaborate contractual scheme of employment contemplated by W. Va. Code § § 18A-2-5 & 6 and 18A-4-8b. See Boner, supra.
      5.      The undersigned Administrative Law Judge concludes a board of education's general powers to enter into contracts under W. Va. Code § 18-5-5 has been somewhatlimited by the elaborate statutory scheme established for the employment of school service personnel.
      6.      The contractual scheme of employment for school personnel does not allow for the hiring of independent contractors to perform the full-time, regular duties of school service personnel positions. See Boner, supra; Ganoe v. Hampshire County Bd. of Educ., Docket No. 97-14-229 (July 30, 1997); Dempsey v. Fayette County Bd. of Educ., Docket No. 98-10-357 (Dec. 8, 1998).
      7.      "To ascertain whether a workman is an employee or an independent contractor each case must be resolved on its own facts and ordinarily no one feature of the relationship is controlling, but all must be considered together." Syl. Pt.1, Myers v. Workmen's Compensation Comm'r,150 W. Va. 563, 148 S.E.2d 664 (1966).
      8.      "In determining whether a workman is an employee or an independent contractor, the controlling factor is whether the hiring party retains the right to control and supervise the work to be done." Id. at Syl. Pt. 2.
      9.       "'If the right to control or supervise the work in question is retained by the person for whom the work is being done, the person doing the work is an employee and not an independent contractor, and the determining factor in connection with this matter is not the use of such right of control or supervision[,] but the existence thereof in the person for whom the work is being done.' Point 2, Syllabus, Spencer v. The Travelers Insurance Company, 148 W. Va. 111." Id. at Syl. Pt. 3.
      10.      Since BCBOE, through the classroom teacher, retained the right to supervise the employees, they were not actually working in the role of independent contractors.       Accordingly, this grievance is GRANTED. However, given the unclear state of the law concerning the legality of contracting out service personnel positions, the uncertainty about who would have receive them if they had been posted last year and filled as required by law, and all the facts and circumstances, the undersigned Administrative Law Judge does not believe Grievant is entitled to the specific relief requested, or that in this set of circumstances such relief would be fair and equitable. Accordingly, the specific relief is denied. If these type of positions are to be utilized in the future, BCBOE is directed to post and fill them pursuant to statute.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Braxton County. Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 18-29-7. Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal, and should not be so named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

                                     ___________________________________
                                                 JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: July 28, 2000


Footnote: 1
      Grievant was represented by Attorney John E. Roush, of the West Virginia School Service Personnel Association, and Respondent was represented by Attorney Greg Bailey.
Footnote: 2
      Since this argument was not raised by Respondent at or prior to Level II, this argument will not be addressed. Hicks v. Hampshire County Bd. of Educ., Docket No. 97- 14-382 (Mar. 17, 1999). See W. Va. Code § 18-29-3(a) (1992).
Footnote: 3
      These regulations were not addressed during the Level II and Level IV hearings, nor were they admitted into the record.
Footnote: 4
      Karen Short signed the contract on behalf of Precision Services, Inc., but there was no further information on this issue.
Footnote: 5
      The testimony, both at Level II and Level IV, about the actual functioning of the Precision, Services Inc.'s workers, and how their activities differed from the duties of Aideswas confusing and unclear.
Footnote: 6
      Classroom Aides are not required to have this training, but transportation Aides are. Grievant has this training.
Footnote: 7
      Even though this data was obtained after Grievant filed this grievance, no one objected to the information, and no one was called to rebut Grievant's assessment of the activities of these workers.
Footnote: 8
      This case also discussed and relied on many other issues not dealt with here.
Footnote: 9
      See pages 13 through 14 infra.
Footnote: 10
      An issue not raised by Grievant was whether the contract entered into by Precision Services, Inc. and Mr. McChesney was a valid contract as there was no evidence that it was approved by the Superintendent or the Braxton County Board of Education. The only signatures on the contract were those of Mr. McChesney and Mrs. Short.
Footnote: 11
      The independent contractor relationship and status extends to the employees of the individual who has independently contracted. Kirkhart v. United Fuel Gas Co., 86 W. Va. 79, 102 S. E. 806 (1920). In other words, the independent contractor's employees must be under the control and supervision of their master for the independent contractor relationship to be valid. Id.