Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D.
Defendants Elizabeth Education Association (EEA), Herbert Levitt, Louis Alt, Joan Walsh and Denise Gebrian appeal from convictions of contempt in a summary proceeding (R. 1:10-2-4) entered against them on October 16 and October 22, 1975.*fn1
The convictions arose out of a strike of the public schools of the City of Elizabeth which are under the jurisdiction of Elizabeth Board of Education (board). EEA was the representative and exclusive collective negotiations unit (N.J.S.A. 34:13A-5.3) for all certified personnel employed by the board, including teachers as well as noncertified personnel under contract or appointment. Defendant Levitt was the president of EEA. He and the other named individual defendants were EEA's principal negotiators.
Following the convictions the judge imposed fines on all defendants and, in addition, terms of incarceration on the individual defendants. The fines and terms of incarceration were graduated on the basis of the number of days during which defendants were found to be in contempt.
The proceedings commenced on October 6, 1975 with the filing of a verified complaint by the board on the basis of which the judge issued an ex parte restraint and order to show cause directed to defendants. The order included injunctions against picketing, striking, participating in any strike, and ordering, commanding, directing, assisting, abetting or counselling any person in such activities. The order also directed the parties to continue to bargain in good faith. It was made returnable on Friday, October 10, 1975.
On October 7, 1975, the day following the issuance of the restraining order, the judge, on the basis of affidavits concerning
the activities of defendants (each individual defendant being a school employee), issued an order reciting the disobedience of the mandates contained in the order to show cause and directing defendants to show cause before another judge on Friday, October 10, 1975, in the following language:
The order appointed the Union County Prosecutor to prosecute the proceedings and was captioned as for a penal contempt proceeding. R. 1:10-2.
On October 10, 1975, the return date of the contempt order to show cause, the judge conducted a hearing which terminated on October 15, 1975. On October 16, 1975 the judge found defendants guilty of contempt of the October 6, 1975 restraining order for not only October 7, but also October 8, 9, 10, 14 and 15, for which sanctions were imposed.
Thereafter a further hearing was scheduled to determine whether defendants were in "continued contempt" on October 16, 17, 20 and 21, 1975. This hearing was also predicated upon the October 7, 1975 contempt show-cause order. Upon a stipulation that if the hearing were held the same proofs, objections, court rulings and findings would be made, the judge on October 22, 1975 orally announced his finding that defendants were guilty of contempt on October 16, 17, 20 and 21, 1975, for which additional penalties were imposed upon them. Defendants' appeal comprehends both of the orders of October 16 and October 22, 1975, and the sanctions imposed thereby.
We turn first to defendants' contention that the judgments and sanctions exceeded the scope of the order to ...