The company attempted to impede the unionization by hiring additional employees that were against the union.
However, to the company’s disappointment, these employees were not hired until after the company’s current employees filed their application to unionize, making the new employees unable to participate.
Since so many people think this is an important point, I thought I'd do a post addressing just that contention. What I assume people mean is that granting in-the-money options is not illegal, so long as you account for it properly. But the whole point of backdating is to pretend that you're not granting in-the-money options when in fact you are.
And to say it's up to the bean-counters to catch this situation is silly, because the whole reason you're using phony dates is so that the bean-counters won't know what you really did.
And this is why defenses to backdating sometimes get hard for me to understand.