The NMB makes the forceful argument that the same arrangement should prevail under the Railway Labor Act, with a carrier precluded from initiating a district court challenge to certification by the NMB under Article 2, Ninth, and obliged to wait until the certified union sued to enforce the carrier's obligation to "treat with" the employees' representative and then assert whatever limited defenses may be available, see Switchmen's Union v. National Mediation Board, 320 U.S. 297, 307, 64 S. Ct. 95, 100, 88 L. Ed. 61 (1943); Virginian Railway v. System Federation No. 40, 300 U.S. 515, 562, 57 S. Ct. 592, 606, 81 L. Ed. 789 (1937). The carrier contends that the procedures of the NLRA and the RLA vary in important respects, and that the differences warrant different opportunities for litigation. Noting that the NMB has no authority comparable to that of the NLRB to bring an unfair labor practice charge when an employer breaches a duty to bargain, British Airways argues that it is entitled to initiate this suit in the District Court to challenge the NMB's certification, and, if unsuccessful, thereafter may also resist the Union's equitable action in the District Court to enforce the carrier's duty to "treat with" the Union.1

It is not entirely clear whether the issue dividing the parties concerns a carrier's standing to litigate or the reviewability of NMB orders in advance of a union's suit to enforce the carrier's obligations under the Act.2 However framed, we think the issue has been implicitly resolved in favor of the carrier's right to litigate by the Supreme Court's decision in Brotherhood of Railway & Steamship Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 85 S. Ct. 1192, 14 L. Ed. 2d 133 (1965) ("Railway Clerks"), aff'g in part and rev'g in part United Air Lines v. National Mediation Board, 330 F.2d 853 (D.C.Cir.1964). In Railway Clerks the Court entertained on the merits claims of both a union and a carrier, United Air Lines, that the NMB was unlawfully determining an employees' representative by proposing to conduct an election with a ballot that did not permit an explicit vote against collective representation. In the District Court, United's suit challenging the form of ballot had been dismissed on grounds assumed by the Court of Appeals to have been lack of standing. See 330 F.2d at 854. The union's suit was entertained in the District Court and resulted in an injunction against use of the ballot. After affirmance of both the injunction and the dismissal of United's suit by the Court of Appeals, id., petitions for certiorari were filed in the Supreme Court. United's petition specifically included the following as one of the questions presented: "Does a carrier have judicial standing to complain of the ballot form?" Pet. for Cert., No. 139, Oct. Term 1964, question 2(b). The Supreme Court granted the petition without limitation and adjudicated the merits of United's claim, at least to the extent of holding that the ballot form was within the permissible range of discretion Congress had delegated to the NMB. Thus, in contrast to its holding that United was not entitled to participate as a party in the proceedings before the NMB, the Court was willing to consider the merits of United's claim that the result of those proceedings would be to require it to bargain with an improperly certified representative. We agree with the Ninth Circuit that Railway Clerks is an implicit holding that a carrier has standing to challenge NMB decisions concerning the certification of the representative of its employees. International In-Flight Catering Co. v. National Mediation Board, 555 F.2d 712, 719 (9th Cir. 1977). We therefore reach the merits, which in cases of this sort is framed as an issue of district court jurisdiction.

2. In Switchmen's Union v. National Mediation Board, supra, the Supreme Court stated that the purposes of the Railway Labor Act precluded judicial review of NMB actions: "(T)he intent seems plain-the dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law." 320 U.S. at 305, 64 S.Ct. at 99. The general rule derived from this case has come to be that " '(r)epresentation disputes,' which involve controversies surrounding the designation and authorization of representatives of employees covered under the RLA, are committed to the exclusive jurisdiction of the NMB." Air Line Pilots Association v. Texas International Airlines, 656 F.2d 16, 20 n.6 (2d Cir. 1981). As the District Court recognized, however, this general principle does not completely displace the courts from any role in NMB matters; it simply means that our role is quite limited. The scope of judicial review and intervention is confined to "instances of constitutional dimension or gross violation of the statute." International Brotherhood of Teamsters v. Brotherhood of Railway, Airline & Steamship Clerks, 402 F.2d 196, 205 (D.C.Cir.), cert. denied, 393 U.S. 848, 89 S. Ct. 135, 21 L. Ed. 2d 119 (1968). Accord, Railway Clerks, supra, 380 U.S. at 659-60, 661, 85 S. Ct. at 1197, 1198; Sedalia-Marshall-Boonville Stage Line, Inc. v. National Mediation Board, 574 F.2d 394, 397-99 (8th Cir.), cert. denied, 439 U.S. 881, 99 S. Ct. 218, 58 L. Ed. 2d 193 (1978); International In-Flight Catering Co. v. National Mediation Board, supra, 555 F.2d at 717-18.

Inspection of the statute reveals that there are relatively few commands capable of being violated. Section 2, Ninth of the Act places a duty on the NMB to investigate representation disputes upon application of a party; all details and procedures, however, are left to the NMB's discretion. It is authorized to conduct an election if it sees fit, either by secret ballot or by "any other appropriate method." If it does conduct an election, it is obliged to "designate who may participate in the election and establish the rules to govern the election," but how it accomplishes this mission is entirely its affair, as long as it makes certain that the carrier does not interfere. See Railway Clerks, supra, 380 U.S. at 668-69, 85 S. Ct. at 1201-02. Not surprisingly, given the evident breadth of this discretion and the reluctance of courts to intervene in RLA cases, judicial inquiry has focused on whether the NMB obeyed the principal statutory command to investigate disputes; as the Ninth Circuit has said, "(R)eviewing a certification after an investigation by the NMB and reviewing whether the NMB made its statutory investigation at all are two completely different matters. While we cannot, and do not, review the former, we can and do review the latter." International In-Flight Catering Co. v. National Mediation Board, supra, 555 F.2d at 717. Alternatively, the same limited judicial role results if courts consider all challenges to the NMB's exercise of its certifying authority as allegations of breach of the statutory duty to investigate, and find meritorious only those involving an investigation so inadequate as to be a non-performance of the duty.

In this case, British Airways alleged in the District Court both a breach of the NMB's duty to investigate and, as separate illegalities, the setting of the cutoff date and the counting of ballots. On appeal, only the latter two claims are pursued. Neither constitutes action in excess of delegated powers or contrary to specific statutory directions. The NMB decided to conduct an election and to do so by secret ballot. It then designated who could participate, as it is required to do, and specified those workers in plaintiff's employ as of May 14, 1978. It also set rules for the election, again as required. Selecting a cutoff date, even though as events unfolded it was not possible to conduct the election until more than two years after the date, and counting ballots that reasonably appeared from postmarks to have arrived at the post office before the deadline were decisions well within its discretion. This is not a case of abuse of power or defiance of statutory mandate. The District Court correctly ruled that it was without jurisdiction to review the NMB's certification. Cf. Railway Clerks, supra, 380 U.S. at 659-61, 85 S. Ct. at 1197-98; Leedom v. Kyne, supra.

The judgment of the District Court is affirmed.